Fiduciary Duties & Shareholder Litigation Flashcards
DGCL § 102
Contents of certificate of incorporation (abridged)
(1) Name (must contain “corporation,” “association,” etc.; must be unique; can’t have word “trust” or “bank” in it.)
(2) Address of corporation’s registered office in DE and name of registered agent at same address
(3) Nature or purpose of business (can simply say “to engage in any lawful act or activity for which corporations may be organized” under DGCL.)
(4) Classes of shares (including number authorized to issue, relative seniority, and rights of each class)
(5) Names/addresses of incorporators
(6) If powers of incorporators expire upon filing of the certificate, the names/addresses of the first board of directors.
DGCL § 141
Board of directors (abridged)
(a) The corporation “shall be managed by or
under the direction of a board of directors,” unless others are given that power in the certificate.
(b) BOD shall be one or more people; number fixed in bylaws (unless fixed in certificate, then must amend certificate to change); directors need not be shareholders unless certificate says otherwise; quorum = majority of directors unless certificate says otherwise. (Also some details on director terms and resignation, etc.)
(c) (powers of and rules regarding committees)
(d) directors may be divided into 1, 2, or 3 classes (staggered); voting rights may be unevenly split between directors
(e) board and committee members are protected from liability for relying in good faith on corporate records/documents provided by company employees, officers, and other people reasonably thought to have professional competence
(f) can take any action that requires a meeting without actually meeting if you obtain written consent
(g) board and committee members can have out-of-state offices
(h) board can fix directors pay unless certificate says otherwise
(i) conference calls can be meetings
(j) (nonstock corporations)
(k) shareholders can remove board members without cause unless certificate says it mus be for cause (and other less important stuff)
DGCL § 101(b)
Corporate purpose
(b) A corporation may be incorporated or organized under this chapter to conduct or promote any lawful business or purposes, except as may otherwise be provided by the Constitution or other law of this State.
DGCL § 102(a)(3)
Corporate purpose (in the certificate)
(a)(3) The nature of the business or purposes to be conducted or promoted. It shall be sufficient to state, either alone or with other businesses or purposes, that the purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, and by such statement all lawful acts and activities shall be within the purposes of the corporation, except for express limitations, if any;
DGCL § 121
General Powers
(a) In addition to the powers enumerated in § 122 of this title, every corporation, its officers, directors and stockholders shall possess and may exercise all the powers and privileges granted by this chapter or by any other law or by its certificate of incorporation, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business or purposes set forth in its certificate of incorporation.
(b) Every corporation shall be governed by the provisions and be subject to the restrictions and liabilities contained in this chapter.
DGCL § 122
Specific Powers
Every corporation created under this chapter shall have power to:
(1) Have perpetual succession by its corporate name, unless a limited period of duration is stated in its certificate of incorporation;
(2) Sue and be sued in all courts and participate, as a party or otherwise, in any judicial, administrative, arbitrative or other proceeding, in its corporate name;
(3) Have a corporate seal, which may be altered at pleasure, and use the same by causing it or a facsimile thereof, to be impressed or affixed or in any other manner reproduced;
(4) Purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with real or personal property, or any interest therein, wherever situated, and to sell, convey, lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, all or any of its property and assets, or any interest therein, wherever situated;
(5) Appoint such officers and agents as the business of the corporation requires and to pay or otherwise provide for them suitable compensation;
(6) Adopt, amend and repeal bylaws;
(7) Wind up and dissolve itself in the manner provided in this chapter;
(8) Conduct its business, carry on its operations and have offices and exercise its powers within or without this State;
(9) Make donations for the public welfare or for charitable, scientific or educational purposes, and in time of war or other national emergency in aid thereof;
(10) Be an incorporator, promoter or manager of other corporations of any type or kind;
(11) Participate with others in any corporation, partnership, limited partnership, joint venture or other association of any kind, or in any transaction, undertaking or arrangement which the participating corporation would have power to conduct by itself, whether or not such participation involves sharing or delegation of control with or to others;
(12) Transact any lawful business which the corporation’s board of directors shall find to be in aid of governmental authority;
(13) Make contracts, including contracts of guaranty and suretyship, incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage, pledge or other encumbrance of all or any of its property, franchises and income, and make contracts of guaranty and suretyship which are necessary or convenient to the conduct, promotion or attainment of the business of (a) a corporation all of the outstanding stock of which is owned, directly or indirectly, by the contracting corporation, or (b) a corporation which owns, directly or indirectly, all of the outstanding stock of the contracting corporation, or (c) a corporation all of the outstanding stock of which is owned, directly or indirectly, by a corporation which owns, directly or indirectly, all of the outstanding stock of the contracting corporation, which contracts of guaranty and suretyship shall be deemed to be necessary or convenient to the conduct, promotion or attainment of the business of the contracting corporation, and make other contracts of guaranty and suretyship which are necessary or convenient to the conduct, promotion or attainment of the business of the contracting corporation;
(14) Lend money for its corporate purposes, invest and reinvest its funds, and take, hold and deal with real and personal property as security for the payment of funds so loaned or invested;
(15) Pay pensions and establish and carry out pension, profit sharing, stock option, stock purchase, stock bonus, retirement, benefit, incentive and compensation plans, trusts and provisions for any or all of its directors, officers and employees, and for any or all of the directors, officers and employees of its subsidiaries;
(16) Provide insurance for its benefit on the life of any of its directors, officers or employees, or on the life of any stockholder for the purpose of acquiring at such stockholder’s death shares of its stock owned by such stockholder.
(17) Renounce, in its certificate of incorporation or by action of its board of directors, any interest or expectancy of the corporation in, or in being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or 1 or more of its officers, directors or stockholders.
DGCL § 124
Effect of a lack of corporate capacity; ultra vires
No act of a corporation and no conveyance or transfer of real or personal property to or by a corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do such act or to make or receive such conveyance or transfer, but such lack of capacity or power may be asserted:
(1) In a proceeding by a stockholder against the corporation to enjoin the doing of any act or acts or the transfer of real or personal property by or to the corporation. If the unauthorized acts or transfer sought to be enjoined are being, or are to be, performed or made pursuant to any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the proceeding and if it deems the same to be equitable, set aside and enjoin the performance of such contract, and in so doing may allow to the corporation or to the other parties to the contract, as the case may be, such compensation as may be equitable for the loss or damage sustained by any of them which may result from the action of the court in setting aside and enjoining the performance of such contract, but anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a loss or damage sustained;
(2) In a proceeding by the corporation, whether acting directly or through a receiver, trustee or other legal representative, or through stockholders in a representative suit, against an incumbent or former officer or director of the corporation, for loss or damage due to such incumbent or former officer’s or director’s unauthorized act;
(3) In a proceeding by the Attorney General to dissolve the corporation, or to enjoin the corporation from the transaction of unauthorized business.
DGCL § 141(a)
Board of directors
(a) The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation. If any such provision is made in the certificate of incorporation, the powers and duties conferred or imposed upon the board of directors by this chapter shall be exercised or performed to such extent and by such person or persons as shall be provided in the certificate of incorporation.
