Corporations Flashcards
What is a corporation?
A distinct legal entity that can conduct business in its own right.
Benefits of a corporation:
- Limited liability: Members not personally liable.
2. Promote investment
3 major groups in a corporation:
- Shareholders
- Directors
- Officers
Who are the shareholders?
Investors that provide money or labor, and in exchange get equity/stock/shares which rep a residuary interest in corp.
Who are the directors?
Directors of the board, elected by shareholders, resp for major decisions of corp. They also appoint the officers.
Who are the officers?
Run the corporation on a daily basis.
What are promoters? Do they act as fiduciaries?
People who try to find investors for a corp. People who enter into contracts on behalf of corp even before it exists.
They are fiduciaries (cannot make secret profits).
Are corporations liable for pre-incorporation agreements?
Generally no. Promoters are before corp exists.
Exception: Novation shifts liability from promoter to corp. Novation = agreement btw promoter, corp and third party.
What do the incorporators do?
Sign and file articles of incorporation.
Are incorporators liable for contracts formed by promoters?
No
What are the articles of incorporation?
Corp’s constitution. The contract btw corp and shareholders that establishes basic rights in these groups. And the contract btw state and corps.
What is listed in the articles of incorporation?
- Name (which must include “corporation, company, incorporated, limited, corp, co, inc, or ltd”)
- Agent (and address) within state of incorp
- Incorporators and name and address
- Duration (usually just perpetual)
- Purpose (not always required)
- Authorized shares: max number of shares of each class of stock
What is ultra vires?
Acts beyond powers of corp
What happens if corp acts ultra vires?
Could be held unenforceable
Can the creditor of a corp challenge the corp’s acts as ultra vires?
No
The moment of incorporation is when…
the limited liability attaches, which is when SoS accepts the fee and files the articles of incorporation.
What are a corporation’s bylaws?
They set forth day-to-day rules of corp.
Easier to amend than articles of incorporation.
Who can change the bylaws? Who can change the articles of incorporation?
Board of directors; shareholders
If bylaws conflict with articles, which wins?
Articles always
What is a de jure corp?
When all statutory reqs for incorp have been satsifed
If not all statutory reqs for incorp are met, what do we have?
Might be a de facto corp nonetheless.
Still treated as corp if:
- Organizers made a good faith effort to comply with incorp process and
- Have no actual knowledge of defect with incorp process
Are bylaws needed to incorporate a business?
No
What does it mean to pierce the veil?
Court may pierce veil of limited liability to avoid fraud or unfairness, meaning they may reach beyond corporation itself into members’ personal assets to satisfy the judgment.
General rule about shareholder liability:
Not personally liable, but may be liable for what they invested.
When does piercing the veil possibly arise?
- Alter ego: Investor or shareholder has failed to observe any of the corp formalities between person and corp.
- Undercapitalization: Failure to maintain funds in the company sufficient to cover business’s foreseeable liabilities.
- Fraud: If parties engaged in fraud or fraud-like behavior.
When are courts more likely to pierce the veil–in torts or contracts, when smaller or bigger corp?
In torts (as opposed to contracts).
And when smaller corp (as opposed to bigger one).
What is stock?
The rep of ownership in a company (aka: shares, equity)
What does stock typically carry?
- voting attributes
2. economic rights
What is a creditor and what are they entitled to?
Creditors hold the debt of a corp and are entitled to repayment of the loan + interest.
What are stockholders entitled to?
All value that remains after all debt has been repaid (to creditors).
What is preferred stock?
Has pref over common stock wrt dividends (money paid out to stockholders) and liquidation (business ended and money leftover distributed).
How many diff classes of stock can a corp have?
Unlimited
“Issuance of stock” means…
Sale of stock of corp to investing public
Authorized shares is…
The max number of shares directors can sell.
Must be set forth in articles. Must amend those via vote of shareholders to go higher.
Issued shares are…
The number taken out of authorized pool that directors have actually issued.
Outstanding shares are…
Shares once issued to shareholders and still in possession of shareholders.
Treasury shares are…
Shares previously issued to shareholders but reacquired by corp.
Usually only ___ shares are voted?
Outstanding
Par value rule
Corp may but is not required to issue stock at par value. If it does, it needs to sell those shares for at least the min par value listed.
What kind of consideration can corp receive?
Any valid consideration that board deems adequate.
Can be cash, labor, IP, etc.
Watered stock means…
If corp sets par value amount and sells it for less, stock has been watered by that amount.
Who is liable for watered stock?
Shareholders who bought watered stock are liable to creditors of corp.
What is a subscription to stock?
Agreement in advance to pay for stock.
How enforceable is a subscription agreement?
Irrevocable for up to 6 months.
What are preemptive rights? What is the default rule around them?
Right to acquire stock that maintains your percentage of ownership any time new shares are issued.
Default rule: shareholders do not have this right, but can negotiate for these rights or include in articles
How do you distribute money from a corp?
- Board can issue a dividend
- Board can buy back shares of corporation
Can only be authorized by board.
What is a dividend in kind?
Assets of company?
Do shareholders have rights to dividends?
No
When can board NOT declare dividends?
- If corp is insolvent (already in bankruptcy)
2. If by issuing it, it would become insolvent.
Directors who vote to authorize unlawful dividends are…
Personally liable (jointly and severally) to the corporation for the amount of the distribution in excess of the lawful amount.
Defense: If director relied in good faith on financial statements.
Formulas for how to distribute a dividends (priority order):
Dividend $ / # of shares
If there is preferred stock: # of preferred stock x $ dividend pref, then use remaining to calculate $ for common shares based on basic formula.
If participating preferred shares: # of preferred stock x $ dividend pref, then use remaining to calculate $ for common shares PLUS PARTICIPATING SHARES based on basic formula.
If cumulative preferred share: You do the preferred stock formula but add the years that they didn’t get paid too before calculating for common shares.