Corporations Flashcards
The promoter is liable even after the corporation has been formed unless what occurs?
NLK
NLK
Novation Looks Knowledge
The promoter is liable even after the corporation has been formed unless:
- The corporation formally releases the promoter from responsibility through a novation;
- The third party looks only to the corporation for performance;
OR - The promoter had no actual knowledge that the corporation’s charter has not yet been issued
Under what theory can someone avoid personal liability when acting in good-faith in complying with the state’s incorporation requirements and operating his business as a corporation without knowing that the requirements were not met?
De Facto Corporation Doctrine
When a person makes a good-faith but unsuccessful effort to comply with the incorporation requirements, that person may be able to escape personal liability under the de facto corporation doctrine. In this case, the business entity is treated as a defacto corporation, and the owner is not personally liable for obligations incurred in the purported corporation’s name
Note: the de facto corporation doctrine has been abolished by the RMBCA, and therefore any state that has adopted the RMBCA has also abolished the de facto corporation doctrine. This should be at least mentioned on an exam.
What is a corporation’s key constitutional document called and what must this document contain?
A corporation’s key constitutional document is called the Articles of Incorporation, and it must contain the corporation’s name including one of the following words: “corporation,” “company,” “incorporated,” or an abbreviation thereof
In what three situations can an ultra vires act be challenged?
SCS
SCS
Shareholder Corporation State
An ultra vires act can be challenged in only the following situations:
1. A shareholder can file suit to enjoin the corporation’s ultra vires action;
2. The corporation can take action against a director, officer, or employee who engaged in the action,
OR
3. The state can initiate a proceeding to enjoin the corporation’s ultra vires action
What is par-value stock?
Par value is the minimum price for which the stock can be sold by the corporation (need not be its market value).
Par value applies only when the stock is first sold by the corporation (as opposed to a shareholder selling it to another)
Who may a director rely on in making decisions?
Reliance Protection:
A director may rely on information and opinions of officers, employees, outside experts (e.g. attorneys, accountants), or committes, so long as the director reasonably believes them to be reliable and competent
What is a shareholder’s preemptive right?
Definition: a preemptive right is the right to buy enough stock to maintain your ownership percentage in the corporation if the corporation sells more stock; a waiver of preemptive rights in writing is irrevocable
Generally, SHs have only limited liability for corporate acts and are only at risk to the extent of their investment. What is the exception to this rule?
Piercing the corporate veil – if a plaintiff can pierce the corporate veil, then the SHs can be held personally liable
What is a director’s liability for unlawful distributions to shareholders? If liable, is the director entitled to contributions from other directors or shareholders?
If a director violates the duty of care or loyalty in approving an improper dividend, the director is personally liable for any amount above the lawful distribution amount.
A director is entitled to contributions from other directors who have also violated their duties and from the excess amount received by shareholders who knowingly accepted unlawful distributions
How can you disinguish between a direct suit by a shareholder and a shareholder derivative suit?
The distinction between direct suits and derivative suits can be murky, but the basic idea is that an action that principally harms the shareholder is a direct action while an action that harms the corporation as an entity is a derivative action. (for example, an allegation that directors mismanaged the corporation is usually derivative)
A corporate insider can be forced to return short-swing profits to the corporation through a Section 16(b) action. What 4 elements are necessary for a Section 16(b) cause of action?
PAISR
PAISR
Publicly Assets Insiders Short Report
The following four elements are necessary for a Section 16(b) cause of action:
- Only
a) publicly traded corporations that have securities traded on a national securities exchange
OR
b) Have assets of more than $10 million and more than 500 shareholders - Only corporate insiders (directors, officeres, and shareholders holding more than 10% of a class of stock) are subject to a Section 16(b) action
- Short swing profits - a corporate insider both bought and sold corporation’s stock during any six-month period
- SEC report of change in stock ownership
When does a corporation engage in an ultra vires act?
A corporation engages in an ultra vires act when it has stated a narrow business purpose in its articles but subsequently engages in activities outside that stated purpose
What is the general rule for a corporation’s liability for pre-incorporation transactions entered into by a promoter? What is the exception?
The corporation is not liable for contracts entered into by the promoter (because there is no fiduciary relationship between the promoter and corporation before the corporation exists)
However, the corporation is liable if it expressly or impliedly adopts a contract by accepting the benefits of the transaction, or gives an express acceptance of liability for the debt
While the articles of incorporation must be filed to incorporate, they need not spell out the manner in which the corporation is governed. The bylaws contain any lawful provision for the management of the corporation’s business. If there is a conflict between the articles and bylaws, which of the two controls?
The Articles of Incorporation.
In the event of a conflict between a corporation’s articles of incorporation and its bylaws, the articles of incorporation control
Other than using the de facto corporation doctrine, how else can someone who acted in good faith avoid personal liability when a company was not in compliance with a state’s incorporation requirements?
Corporation by Estoppel Doctrine:
A person who deals with an entity as if it were a corporation is estopped from denying its existence and thereby prevented from seeking the personal liability of the business owner
There are two types of shareholders meettings: annual and special. Shareholders entitled to vote must be given notice of either type of meeting in a timely manner. What is considered to be a timely manner, and how do shareholders waive their rights to notice?
Voting shareholders must be notified of the time, date, and place in a timely manner no less than 10 days and no more than 60 days before the meeting. Shareholders may waive notice in writing or by attending the meeting
Corporations may choose directors by cumulative voting if so provided in the articles. Rather than having separate votes for each directorial slot, shareholders are given a number of votes equal to the number of shares multipled by the number of positions being voted on. What is the effect of this?
The effect of cumulative voting is to allow minority shareholders to elect representatives to the board. In other words, shareholders can stack their votes on one or a small number of candidates if they wish, making it easier for minority shareholders to elect at least one director
When is a presumption of good faith afforded by the business judgment rule overcome?
FDCC
FDCC
Fraud Dereliction Condoning Conflict
The presumption of good faith afforded by the business judgment rule is overcome if the challenger:
1. shows fraud,
2. dereliction of duty,
3. condoning illegal conduct,
OR
4. a conflict of interest
If a shareholder wins a derivative suit, who recovers the judgment?
While a shareholder may have suffered harm directly, in a derivative action, the shareholder is suing on behalf of the corporation for harm suffered by the corporation. Thus, recovery generally goes to the corporation
How does a court determine whether to pierce the corporate veil?
Courts are generally reluctant to pierce the corporate veil. A court’s analysis whether to do so in generally very fact intensive, and a court will look at the totality of circumstances (whether the corporation is being used as a facade for a dominant shareholder’s personal dealings.
Common factors courts will use in deciding whether to pierce the corporate veil are:
1. Undercapitalization
2. Disregard of corporate formalities
3. Using corporate assets as shareholder’s own assets
4. Self-dealing with the corporation
5. Siphoning of the corporation’s funds
6. Using corporate form to avoid statutory requirements
7. Shareholder’s domination over the corporation
8. Fraudulent dealings with a corporate creditor
Who, if anyone, is responsible for contracts entered into before the corporation is actually formed?
A promoter is personally liable for knowingly acting on behalf of a corporation before incorporation, and remains liable after the corporation comes into existence
What are the two types of stock?
Common Stock - a basic ownership interest that entitles the owner to vote on corporate governance matters
Preferred Stock - has preference over other stock with regards to distributions
When does a controlling shareholder owe a fiduciary duty to other shareholders, what is that duty, and when is the duty breached?
SED
SED
Selling Eliminate Distribution
Although shareholders do not owe fiduciary duties to the corporation or to each other, a fiduciary duty to the minority shareholders may arise if a controlling shareholder is:
1. Selling that interest to an outsider
2. Seeking to eliminate other sharehodlers; OR
3. Receiving a distribution denied to the other shareholders
A controlling shareholder has a duty to disclose information that a reasonable person would consider important in deciding how to vote on a transaction, and a duty of fair dealing when purchasing a minority shareholder’s interest
A controlling shareholder breaches the duty if nondisclosure causes a loss to the minority shareholders
In an LLC, what document governs any or all aspects of its business?
An LLC may adopt an operating agreement to govern its business. The operating agreement can be oral, in a record, or implied by conduct. Statutory default provisions apply when the operating agreement is silent
What are the three ways shareholders can vote together?
PTM
PTM
Pool Trust Management
The three ways shareholders can vote together are:
- Voting pool - a binding voting agreement under which shareholders retain legal ownership; does not need to be filed with the corporation; no time limit
- Voting trust - a trust to which legal ownership of shareholder’s stock is transferred; the trustee votes the shares and distributes the dividends in accord with trust; must be in writing, limited to 10 years, and filed with the corporation
- Management agreement - allows shareholders to alter the way the corporation is managed even if the agreement is inconsistent with statutory provisions
In an LLC, how are profits and losses allocated and distributed if the operating agreement fails to determine the manner?
In the absence of an operating agreement provision stating otherwise, profits and losses are allocated and distributions are made according to each member’s contributions to the LLC
How does an S corporation differ from a C corporation?
A C corporation is a basic corporation and is a separate taxable entity from its shareholders, causing the corporation to face double taxation (profits taxed when brought in, and shareholders are taxed on distributions)
S corporations have “pass through” taxation (as with a partnership). The income and expenses of the corporation are passed through to the shareholders, who are then taxed on such items directly
Shareholderes who have the right to vote on a merger, asset sale, share exchange, or amendment of the articles of incorporation are entitled to appraisal rights (in some states these are known as dissenters’ rights). What exactly do these rights give to a dissenting shareholder?
A shareholder who objects to a merger or acquisition, or whose rights are materially and adversely affected by an amendment to a corporation’s articles, may be able to force the corporation to buy his stock at fair market value.
Who may bring a derivative shareholder action?
TO have standing to bring a suit, a plaintiff:
1. Must have been a shareholder at the time of harm
2. Must be a shareholdering at the time the action is filed,
AND
3. Must continue to be a shareholder during the litigation
What is the minimum number of directors required for a board?
ONE
Traditionally, a board needed three or more directors, but today a board can have as few as one director, regardless of the number of shareholders.
Who selects directors and when? What if there is a vacancy on the board?
Directors are selected by the shareholders at the annual meeting and may be elected by straight or cumulative voting and by one or more classes of stock.
When there is a vacancy (or an increase in the number of directors), either the shareholders or directors may fill the vacancy. If the vacancy leaves the board without a quorum, the remaining directors can elect a replacement director by a majority vote.
In the time between when the articles are filed, but before the directors are elected, people may subscribe to purchase stock from the corporation for when it comes into existence. Can a person who subscribed to purchase stock cancel this subscription?
Absent agreement, the subscriber does not have the unilateral right to cancel a subscription, as a pre-incorporation subscription is irrevocable for six months from the date of subscription
What are the benefits of an LLC?
Like an S corporation, an LLC combines the (federal) tax advantages of a partnership with the limited liability of a corporation. An LLC also provides flexibility in management.
Under what circumstances may a shareholder bring an action for corporate dissolution (involuntary dissolution)?
AADD
Assets Acting Deadlock Deadlocked
- A corporation’s assets are being misapplied/wasted
- Directors are acting illegally, oppressively, or fraudulently
- Shareholders are unable to break directors’ deadlock causing irreparable injury;
OR - Shareholders are deadlocked in voting power and fail to elect successor directors
What are the two basic duties directors owe to their corporation and how must directors act in discharging these duties?
Directors owe two basic duties to their corporation:
- Duty of Care
- Duty of Loyalty
In discharging these duties, a director must act in good faith and in a manner that a director reasonably believes (a prudent person standard) to be in the best interests of the corporation. A director is also required to use any additional knowledge or special skills possessed
In what ways can a plaintiff overcome the business judgment rule?
FIMDIE
FIMDIE
Faith Informed Material Devote Investigate Entitled
It must be shown:
1. Director did not act in good faith
2. Director was not informed to the extent she reasonably believed was necessary
3. Director had material interests in challenged conduct and was not objective
4. Director failed to devote attention to the corporation’s affairs
5. Director failed to timely investigate matters of material concern;
OR
6. Director received financial benefits to which he was not entitled
A fraudulent purchase or sale of stock or security can give rise to a Rule 10b-5 action. For a private person to pursue a Rule 10b-5 action, what 7 elements must be met?
P/S IFMSRH
P/S IFMRSH
Purcashed/Sold Interstate Fraudulent Material Scienter Relied Harm
- Plaintiff purchased or sold the security
- Transaction involved the use of interstate commerce
- Defendant engaged in fraudulent or deceptive conduct
- Conduct related to material information
- Defendant acted with scienter
- Plaintiff relied on defendant’s conduct
- Plaintiff suffered harm because of defendant’s conduct
Define controlling shareholder
A controlling shareholder is one (or a group of shareholders acting in concert) who holds a high enough percentage of ownership in a company to enact changes at the highest level. Anyone controlling 50% of a corporation’s shares, plus one, is automatically a controlling shareholder
What are the safe harbors by which a conflict-of-interest transaction may be protected?
Disclosure of all material facts and majority approval by board of directors or shareholders without a conflict interest and fairness of the transaction to the corporation at the time of commencement
What are the three ways distributions can be made to shareholders?
DBI
DBI
Dividend Buying Idebtedness
- Paying out a dividend
- Buying stock from shareholders
- Distribution of indebtedness
In addition to a conflict of interest transaction, a director may violate the duty of loyalty by usupring a corporate opportunity rather than first offering the opportunity to the corporation. What are the two main tests courts apply in determining if an opportunity should have first been offered to the corporation?
- Interest or expectancy test - does the corporation have an existing interest or an expectancy arising from an existing right in the opportunity
- Line-of-business test - is the opportunity within the corporation’s current or prospective line of business, and how expanisve is the corporation’s line of business
There are other factors courts look at in determining whether an opportunity belongs to a corporation, such as: relationship of the third party to the director and of the director to the corporation; how and when the director acquired knowledge of the opportunity
What must be filed to create an LLC, and what must it include?
An LLC is created by filing articles of organization with the state, and it must include the LLC’s name, mailing address, and, if there are no members upon filing, a statement to that effect
An LLC does not come into existence until it has at least one member
What are the three officers that a corporation typically has?
Typically, a corporation’s officers are composed of a president, secretary, and treasurer
What are the three types of authority an officer has?
Actual - as defined by the corporate bylaws or board
Implied - to perform those tasks necessary to carry out an officer’s duties by virtue of her status or position, so long as the matter is within the scope of ordinary business
Apparent - if a corporation holds the officer out as having the authority to bind the corporation to third parties
What are the procedural requirements to merge two or more corporations?
BSD
BSD
Board Shareholders Documents
- The board of directors for each corporation must approve the merger;
- The shareholders of each corporation must usually approve themerger
AND - The required documents must be filed with the state
Mergers without shareholder approval: parent-subsidiary merger and minnow-whale merger
When will an asset acquisition require approval by both the board of directors and the shareholders of the transferor corporation?
A transfer involving all, or substantially all, of he corporation’s assets outside the usual course of business is a fundamental corporate change for the transferor corporation, and the corporation must follow the fundamental change procedures
How can a corporation acquire control of another corporation without going through the process of a merger?
A corporation can acquire stock in another corporation and thereby secure control of that corporation without doing a merger by exchanging its own stock for that stock or by paying cash or other property for the stock
If stock has already been issued by a corporation, what needs to happen in order to voluntarily dissolve the corporation?
Voluntary dissolution of a corporation is a fundamental change and requires a resolution by the directors and shareholder approval
A dissolved corporation may continue to exist as a corporation for the limited purpose of doing what?
A dissolved corporation may continue to exist as a corporation for the limited purpose of winding up its affairs and liquidating its business. This includes collecting assets, disposing of property not distributed to shareholders, discharging liabilities, and distributing property among shareholders according to their interests
How far in advance, absence other requirements in the articles or bylaws of a corporation, must notice be given of a special meeting? What other notice requirements are there for a valid special meeting.
TWO DAYS.
The notice must include the date, time, and place of the meeting.
The notice does NOT need to describe the purpose of the special meeting.
What does “present” mean with regard to constituting a quorum for a corporation’s meeting?
Unless the articles or bylaws specify otherwise…
A quorum requires a majority of all directors to be present, and must be specifically present at the time a vote is taken in order to be counted as part of the quorum. “Present” can include participation in the meeting via communications equipment that allows all persons participating in the meeting to hear and speak to one another.
If any of the diretors cannot hear and speak to all the others present, these directors are not considered legally “present.” And, without be legally present, these directors’ votes would not count.
What is the definition of a corporation and what are its benefits?
Corporation: A distinct legal entity that can conduct business in its own right by buying, selling, and holding property or by suing or being sued, and by lasting forever
Why form a corporation?
Limited liability; AND
Promoting investment
Who are the players in a corporation?
Shareholders: investors, ultimate owners of a residuary interest in a corporations;
Directors: Elected by shareholders, responsible for major corporate decisions, appoint officers;
Officers: Run the corporation on a daily basis
Promoters (pre-incorporation player): Try to find investors who are willing to invest in the corporation; Enter into contracts on behalf of the corporation (even before it exists). Promoters are fiduciaries of the corporation - they cannot make secret profits
Is a corporation liable for a pre-incorporation agreement?
NO.
Corporation is NOT for pre-incorporation agreements
Promoters are personally for any contracts entered into before the corporation exists
What is required to form a corporation?
Must sign and file the articles of incorporation, pay a fee
What must be included in the articles of incorporation?
NAIDPS
NAIDPS
Name Agent Incorporators Duration Purpose Shares
- The name of the corporation, which must include: “corporation,” “company,” “incorporated,” “limited,” or an abbreviation of these words
- The agent of the corporation (name and address within the state of incorporation);
- The names and addresses of the incorporators
- The duration of the corporation (most are perpetual)
- The purpose of the corporation; AND
- Authorized Shares: Must state the maximum number of shares of each class of stock that the corporation is authorized to issue