Corporations Flashcards
FACT PATTERNS FOR CORPORATE LAW
- Organization & Formation of a Corporation
- Issuance of Stock
- Directors and Officers
- Shareholders
- Fundamental Corporate Changes
Corporation
A legal entity distinct from its owners and may be created by filing certain documents with the state.
Owned by shareholders.
Board of Directors manages the corporation (as elected by shareholders).
Officers carry out corporation’s policy.
Formation of De Jure Corporation
- Person or entity (“the incorporator”) forms a corporation by filing articles of incorporation with the secretary of state - If applicable laws followed, it is a “de jure” corporation
- Paper - “The articles of incorporation” contain:
(1) Corporation Name (corp, co, inc, lmtd);
(2) Name and address of Incorporator(s)
(3) Name of registered agent and address of registered office w/in the state of incorporation; and
(4) Stock information (Authorized stock = max number that corp can sell; if multiple class, then number in each class & voting/rights of them - Act - Deliver articles to Secretary of State with required fees.
Organize Corporation
1) Directors (or incorporators) hold organization meeting (may pick directors);
2) Complete organization of corporation by: (1) appointing Officers & (2) Adopt Initial Bylaws (the operating manual). Board of shareholders can amend, repeal, adopt bylaws.
Internal Affairs Rule
Roles and duties of directors/officers/shareholders are governed by law of state where corporation is incorporated.
Entity Status
Corporation is a legal person; can sue, be sued, hold property, be partner in partnership, can invest, can make contributions to charity.
Benefit Corporation (B-Corp)
A corporation to make profit, but also formed to pursue some benefit to a greater social policy cause. Articles must specify. Annual Benefit Report to disclose activities.
Federal Tax Law
Income tax on profits; and Shareholders taxed on distributions (double taxations).
C-Corporations do pay tax.
S-Corporation (subchapter S in IRC): don’t pay tax at entity level. Requires: Max 100 shareholders (all human), all U.S. Citizens; one class of stock that’s not publicly traded
Limited Liability: Shareholders are generally liable only to pay for stock & not for corporate debts (with 1 exception). Only the corporation entity is liable for business debts.
Doctrine of Defective Corporation
Proprietors failed to actually form a corporation, which means they are liable for business debts because they only have partnership.
2 Doctrines to help them escape (MUST BE UNAWARE - ACTING IN GOOD FAITH) - but abolished in many states!!
- De Facto Corporation: (1) Relevant incorporation statute (generally given); (2) parties made good faith, colorable attempt to comply with statute; and (3) some exercise of corporate privileges (acting as though they were a corp).
- - - Exception (Action by State does not protect under this doctrine) - Corporation by Estoppel: not a de jure corporation, but treated as such for people who treated the business like a corporation. Narrow - only applies to contract cases (not tort)
Pre-incorporation Contracts
Everybody knows that a corporation did not exist yet.
Promotor - a person acting on behalf of a corporation that is not yet formed.
Liability:
- – Corporation is only liable if it adopted the contract (express; or implied adoption, which occurs if corporation accepts benefit of the contract)
- — Promotor is liable (unless contract provides otherwise) until there is a novation (even if corp adopts the lease - where both would be liable!!)
- — Foreign Corporations (outside of state where incorporated): must qualify (must register in state) and pay prescribed fees if transacting business here (regular course of intrastate activity) - must maintain agent and office in the state - If fails: cannot assert claim in state and may be liable for civil fee (however, can be sued).
Raising Money in a Corporation
Debt Security (Bonds): Corporation borrows money and agrees to repay it with interest. The person holding a bond is a CREDITOR, not an owner.
Equity Securities (Stock): Corporation sells ownership interest to shareholders. Person holding stock is an OWNER.
Issuance: Corporation sells its own stock.
Issuance of stock
Rules for issuance of stock (ONLY apply when Corporation is selling its own stock):
Subscriptions: written offers to buy stock from the corporation.
Pre-incorporation subscriptions cannot be revoked for 6 months.
Post-incorporation subscriptions are revocable anytime until the offer is accepted by the corporation (i.e. the board accepts the offer, and ya can’t get out).
Consideration:
Form - any tangible or intangible property or benefit to the corporation (cash/property/services/debt/promissory notes)
Amount - Par = minimum issuance price
Treasury Stock: company issued stock but reacquired it; can re-sell at whatever price it wants.
The BOARD must put value on the consideration and determine the value of property/services exchanged for stock (their valuation is conclusive IF made in “good faith”).
Watered stock - Directors are liable if knowingly authorized watered stock. Purchaser is also liable - no defense because he had notice of PAR value. If to 3rd party, they’re not liable if acting in good faith.
Preemptive Rights of Stockholder
Right of existing shareholder to maintain % of ownership by buying stock if there is a new issuance for money (would not apply if employee getting stock for working).
If articles of incorporation are silent - NO preemptive rights.
Requirements for Directors
Must be adult natural persons;
One or More directors (set in articles of bylaws)
Initially either (1) named by articles; (2) elected by incorporators; AND then elected by shareholders - sometimes staggered board.
Shareholders can fire directors prior to term expiration: with or without cause (but some states require with cause for staggered boards). If removing a person, generally must select replacement (otherwise may be the other board members who select replacement for retired one).
Board of directors act as a group; not agents and have no authority to speak/bind corporation. Only act in two ways (1) unanimous agreement in writing; Or (2) at a meeting that satisfies voting and quorum requirements.
No notice for regular board meetings;
Notice required for special meetings (at least 2 days unless bylaws say otherwise) - date/time/place but topic not required.
NO PROXIES OR VOTING AGREEMENTS ALLOWED - non-delegable fiduciary duties.
Director Board Meetings
Any meeting must have quorum (majority of ALL directors).
Majority vote of present directors required to pass resolution.
Role of Board:
1) Manages corporation; sets policy; supervises officer; declares distributions; stock issuance; recommends fundamental corporate changes to shareholders.
May create committees with directors but cannot declare distribution, fill board vacancy or recommend fundamental change to share holders. But can recommend for FULL board action.
Standard for Director’s Fiduciary Duty
STANDARD FOR A DIRECTOR - ALWAYS START HERE FOR FIDUCIARY DUTIES IF BOARD MEMBER MESSING UP
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DUTY OF LOYALTY (Burden on D):
Director must discharge duties in good faith and with reasonable belief that her actions are in the best interest of the corporation; AND
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DUTY OF CARE (Burden on P):
Director must use care that a person in a like position would reasonably believe appropriate under the circumstances.
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Duty of Care
Burden of Proof is on the Plaintiff:
1) Nonfeasance: Director does nothing (breach must cause loss to corp)
2) Misfeasance: Board makes decision that hurts business (not liable if meets business judgment rule).
Business Judgment Rule
Courts will not second guess a poor or erroneous decision made by a director or officer if the decision was made:
- in good faith;
- informed; and
- Had a rational basis
- duty of care *
Duty of Loyalty
Applies when the fiduciary has a conflict of interest (bus judg rule does NOT APPLY)
Burden is on the Defendant.
Result: (1) Interested director transaction will be set aside; OR (2) director liable for damages; UNLESS D can show fair to corporation when entered, or that her interest and the relevant facts were disclosed or known, and the deal was approved by either (1) a majority of disinterested directors; or (2) a majority of the disinterested shares. ** some courts also require a showing of fairness.
Quorum rule of disinterested directors: must be majority, but at least 2
Types of conflicts that violate duty of loyalty:
1) Self-dealing / interested transaction
2) Competing ventures (remedy: constructive trust to get profits from D)
3) Corporate opportunity (director cannot usurp corp opportunity unless he tells board and waits for them to reject opportunity) - (something the company has an interest or expectancy in; or something that D found on company time or resources) - inability for company to pay is not a defense). Remedy: must sell to corp at cost; or give profit to corp if sold (constructive trust)
Loans
A corporation can make a loan to a director if it is reasonably expected to benefit the corporation (e.g. education)
Ultra Vires Acts
Where a corporation acts outside of its stated purpose (as stated in the articles of incorporation).
Ultra Vires Acts
Where a corporation acts outside of its stated purpose (as stated in the articles of incorporation).
When are directors liable
1) improper distributions
2) improper loans
3) ultra vires acts
4) breaches of fiduciary duties
A director is presumed to concur with board action unless dissent/abstention is noted in the writing of corporate records (minutes, in writing during/after meeting), and cannot dissent if voted for resolution at meeting.
—- Exceptions: (1) not liable if not present at meeting; OR (2) good faith reliance on information provided by non-member or professional.
Officer Duties
Officer: President, Treasurer, Secretary
Owe same duties of care and loyalty as directors.
Officers are agents of the corporation (corporation is the principal).
Corporate President has inherent authority to bind corp to contracts in ordinary course of business.
Officers are selected and removal by the Board.
Shareholders hire/fire Directors