Corporations Flashcards
Formation of a Corporation, liability in contract , promoter’s liability
The articles of incorporation are filed with the state, and, if in conflict with bylaws, the articles control.
A corporation is not generally liable for a contract entered into prior to incorporation unless it expressly or impliedly adopts (ratifies) the contract.
The promoter (the person entering the contract on behalf of the to be formed corporation) is liable
Shareholders
Shareholders are only owners and do not manage the corporation. Thus, they generally just have annual meetings. Can vote on fundamental changes, changes in bylaws, and to remove or add a director.
Written notice of meetings is required 10-60 days prior and must state the time, place, and purpose of the meeting.
Shareholders can vote by proxy (have someone vote their shares for them) or by voting agreement.
Generally, a quorum (majority of all outstanding shares required to vote) must be present to hold a vote.
Directors
Directors manage the corporation and (like shareholders) act as a body by voting.
Note: Shareholders hire and fire directors.
Directors cannot vote by proxy or agreement. A quorum (majority of directors) needs to be present for a vote to take place, but unlike shareholders, directors can “break quorum” by leaving. Notice is only required for a special meeting.
Applies to in general Corporation members and LLC members
Standard of care
Standard of Care: In general directors, officers, and incorporators of a corporation must perform their duties in: good faith; in a manner reasonably believed to be in the best interests of the corporation; and with such care as a person in a like position would use under similar circumstances
Duty of Loyalty Director
A director must act in good faith and with a reasonable belief that what he does is in the corporation’s best interest. The business-judgment rule presumption does not apply if there is a duty of loyalty issue. A duty of loyalty issue arises in three ways (mnemonic=BCC):
§ Director is on both sides of a transaction: a director has a material financial interest in a contract, as well as knowledge of that interest, yet still votes to approve the contract. Competes with corporation :a director may not compete with his corporation.
§ Corporate opportunity: a corporate officer may not usurp a corporate opportunity.
Waiver of Duty of Loyalty in an LLC
Waiver of duty in an LLC: an LLC operating agreement may waive the duty of loyalty (e.g., allow members to open competing businesses) so long as it is not “manifestly unreasonable.
Shareholder Voting
Voting: to pass a resolution requires a quorum present, with more votes in favor of the resolution than against it. Unless the articles of incorporation provide otherwise, each outstanding share (regardless of class) is entitled to one vote on each matter voted on at a shareholders’ meeting.
• Who votes? The record owner on the record date. The record date determines who is entitled to vote at a particular meeting—namely, those persons who were registered as shareholders “of record” on that date.
Exceptions are if the shareholder died (then the shareholder’s executor may vote) or executed a valid proxy (then the proxy may vote).
Voting by proxy: A shareholder may vote by proxy. A shareholder can appoint a proxy by signing an appointment form or making a verifiable electronic transmission. A shareholder may not orally ask someone to serve as a proxy. A proxy is generally revocable (even if it states it is irrevocable),
-any action inconsistent with the grant of a proxy works to revoke it. Thus, when two or more revocable proxies are given, the last given proxy revokes all previous proxy.
Voting by Proxy
Voting by proxy: A shareholder may vote by proxy. A shareholder can appoint a proxy by signing an appointment form or making a verifiable electronic transmission. A shareholder may not orally ask someone to serve as a proxy. A proxy is generally revocable (even if it states it is irrevocable),
and any action inconsistent with the grant of a proxy works to revoke it. Thus, when two or more revocable proxies are given, the last given proxy revokes all previous proxy
Exception: A proxy is not revocable if it explicitly states it is irrevocable and is coupled with an interest (e.g., a sale of shares). Many states say that a proxy is valid for 11 months unless otherwise stated.
Lawsuits against the Corporation by the Shareholders
A shareholder may file an action to establish that the acts of the directors are illegal, fraudulent, or willfully unfair and oppressive to either the corporation or the shareholder. Whether a suit is appropriately brought as a direct or derivative action depends on the injury.
Shareholders Direct lawsuit against the corporation
Direct suits: A direct lawsuit is appropriate when the wrong done amounts to a breach of duty owed to the individual personally. (E.g., when a shareholder sues for denial of preemptive rights, payment of a dividend, or oppression in a close corporation.)
Shareholders Derivative Lawsuits against the Corporation: and requirements
Derivative suits: A derivative suit is appropriate when the injury is caused to the corporation and a shareholder is trying to enforce the corporation’s rights Note: also applies to LLCs.
Filing a derivative lawsuit has extra requirements: A shareholder may not commence or maintain a derivative suit unless three requirements are met (mnemonic=SAD):
(1) standing to bring a lawsuit,
(2) adequacy (the shareholder represents the interests of the corporation), and
(3) demand (generally, the shareholder should file a written demand and wait 90 days before filing a suit unless irreparable injury would result or a demand would be futile).
Any recovery goes to the corporation. A derivative lawsuit can be dismissed with court approval if it is not in the best interest of the corporation to continue it.
Lawsuits against shareholders—piercing the corporate veil:
As a general rule, the law treats a corporation as an entity separate from its shareholders, even where one individual owns all the corporate stock.
In some (very limited) circumstances, courts will disregard the LLC form and hold a shareholder personally liable for corporate debt. To do so is called piercing the corporate veil. It is only allowed in close corporations and LLCs.
Generally, a plaintiff must show that shareholders of the corporation or members of an LLC abused the privilege of incorporating and fairness requires holding them liable.
One generally needs to show undercapitalization of the business, failing to follow formalities, commingling of assets, confusion of business affairs, or deception of creditors. Note that only the shareholders or members who participated in the wrong are personally liable.
Shareholder’s Right to inspect Corporate Books and records
A shareholder has a right to inspect corporate books and records as long as his demand is made in good faith and for a proper purpose. A proper purpose is a purpose reasonably related to a person’s interest as a shareholder (an example is when a shareholder articulates a purpose to address “economic risks” to the corporation). A shareholder must state (1) his purpose, (2) the records he desires to inspect, and (3) that the records are directly connected to his purpose
Formation, Duties, and Rights of an LLC
Formation, rights, and duties: Articles of organization must be filed to create an LLC. Since LLCs are a relatively new form of business association, courts tend to analyze them in the context of corporate or partnership law. Members of an LLC have fiduciary duties of reasonable care and loyalty and just like in a corporation the right to inspect records.
Members of an LLC in a member-managed LLC are treated as agents of the LCC (with actual and apparent authority to bind the LLC in ordinary—but not extraordinary—affairs)
Dissociation of an LLC
Dissociation: if a member leaves, then it leads to dissociation of that member, but it does not lead to winding up or dissolution unless the other members unanimously agree to dissolve the LLC.