Chapter 25 Corporate Formation, Financing, and Termination

1. Chapter 25Corporate Formation, Financing, and Termination

2. Learning Objectives • What are the steps for bringing a corporation into existence? Who is liable for preincorporation contracts? • What is the difference between a de jure corporation and de facto corporation? • In what circumstances might a court disregard the corporate entity (“pierce the corporate veil”) and hold shareholders personally liable? • What are the four steps of the merger or consolidation procedure? • What are two ways in which a corporation can be voluntarily dissolved? Under what circumstances might a corporation be involuntarily dissolved by state action?

3. The Nature of the Corporation • A corporation is a creature of statute, an artificial “person.” • Most states follow the Model Business Corporation Act (MBCA) or the RMBCA, that are model corporation laws. • Corporation is owned by the shareholders and managed by a board of directors.

4. Constitutional Rights of Corporations • A corporation is an artificial “person” and has constitutional rights to: • Equal protection; • Access to the courts, can sue and be sued; • Right to due process before denial of life, liability or property.

5. Constitutional Rights of Corporations • Corporation’s rights (cont’d): • Freedom from unreasonable search and seizure and double jeopardy. • Freedom of speech. • Only officers and directors have protection against self-incrimination. • However, corporations do not have full protection of privileges and immunities clause.

6. Limited Liability of Shareholders • The corporation provides limited liability for stockholders. • In certain situations, the corporate “veil” of limited liability can be pierced, holding the shareholders personally liable.

7. Corporate Taxation • Corporate profits can either be kept as retained earnings or passed on to the shareholders as dividends. • Corporate profits are taxed under federal and state law as a separate “person” from its shareholders. • Regular “C” corporations are taxed twice: at the corporate level and at the shareholder level.

8. Torts and Criminal Acts • A corporation is liable for the torts committed by its agents or officers within the course and scope of their employment under the doctrine of respondeat superior. • Corporation can be liable for criminal acts, but only fined. Responsible officers may go to prison.

9. Corporate Powers • A corporation may act and enter into contracts as any natural person, except as limited by: • U.S. Constitution. • State constitutions. • State statutes. • Its own articles of incorporation. • Its own corporate bylaws. • Resolutions by its own board.

10. Express Corporate Powers • The express powers of a corporation are found in the corporation’s articles of incorporation, the laws of the state of incorporation, and in the state and federal corporations. • Corporate by-laws may also grant or limit a corporation’s express powers.

11. Implied Powers • Corporation has implied powers to: to perform all acts reasonably necessary to accomplish its corporate purposes, e.g.,: • Borrow and lend money. • Extend credit. • Make charitable contributions. • A corporate officer can bind corporation in contract in matters connected with the ordinary business affairs of the enterprise.

12. Ultra Vires Doctrine • Corporate acts are beyond the express or implied powers of the corporation as stated in state statute or the corporation’s own articles of incorporations and are considered to be “ultra vires” (beyond the powers). • Corporate articles of incorporations now adopt very broad purposes to prevent lawsuits against the corporation.

13. Ultra Vires Doctrine • The following remedies are available for ultra vires acts: • Shareholders can bring action for corporation. • Corporation can recover damages from its officers and directors. • Attorney general of state may bring action to dissolve corporation for ultra vires acts.

14. Classification of Corporations • Domestic corporation does business in its state of incorporation. • Foreign corporation from X state doing business in Z state. • Alien Corporation: formed in another country doing business in United States.

15. Classification of Corporations • Public and Private. • Nonprofit. • Close Corporations. • Shares held by few shareholders. • More informal management,similar to a partnership. • Restriction on transfer of shares. • CASE 25.1Salt Lake City Tribune Publishing Co. v. AT&T Corp. (2003).

16. Classification of Corporations • “S Corporations”: Avoids the federal “double taxation” of regular corporations at the corporate level. Only dividends are taxed to the shareholders as personal income. IRS requirements: • Corporation is domestic, fewer than 75 shareholders, only one class of stock, no shareholder can be a non-resident alien. • Professional Corporations.

17. Corporate Formation • The process of incorporation generally involves two steps: • Preliminary and Promotional Activities; and • The Legal Process of Incorporation.

18. Incorporation Process Promotion Name Search Subscribers File Articles of Incorporation State Charter 1st Organiza-tional Meeting

19. Promotional Activities • Before corporation is formed, promoters are the persons who take the preliminary steps of organizing the venture and attracting subscribers (investors) via subscription agreements. • A Promoter (or corporation) can create a prospectus required by federal and state securities laws to inform and protect investors.

20. Promoter’s Liabilities • Promoter is personally liable for pre-incorporation contracts on behalf of the corporation, unless 3rd party agrees to hold future corporation liable. • After corporate formation, corporation can adopt the pre-incorporation contract and release the promoter by creating a “novation”.

21. Incorporation Procedures • State Chartering: Select state (some states such as Delaware cater to corporations). • CASE 25.2Bullington v. Palangio (2001). • Articles of Incorporation: primary enabling document filed with the Secretary of State that includes basic information about the corporation. Person(s) who execute the articles are the incorporators.

22. Incorporation Procedures • Choose and reserve a Corporate Name. • Name must have the proper suffix: “corporation,” “corp.,” “Incorporated.” • You should also consider registering the corporation as a “dot com” at networksolutions.com or register.com.

23. Incorporation Procedures • Purpose: trend towards “any legal business.” • Duration: usually perpetual. • Capital Structure: Most states requires some minimal capitalization (Texas requires $1,000), plus number and class(es) of shares authorized and “par value” of shares at incorporation.

24. Incorporation Procedures • Internal Organization: usually included in the bylaws. • Registered Office and Agent: specific person that will receive any legal notice and documents from state and/or 3rd parties. • Incorporators (usually the promoter): at least one with name and address.

25. First Organizational Meeting • After the corporation is “chartered” (created) it and can do business. • Shareholders should have the first organizational meeting to: approve the bylaws, elect directors, hire officers and adopt pre-incorporation contracts and activities.

26. Corporate Status • Errors in incorporation procedures when a 3rd party seeks to bring an action against a corporation that may not have complied perfectly with every incorporation law. • Problematic for shareholders who may be personally liable. • In addition, entity may not be able to enforce contracts.

27. Corporate Status • De Jure: substantial statutory requirements are met; cannot be attacked by state or 3rd parties. • De Facto: statutory requirements not met, but promoters made good faith effort to comply with corporate law;corporate status can only be attacked by state. • By Estoppel: if it acts like a corporation, cannot avoid liability by claiming that no corporation exists.

28. Disregarding the Corporate Entity • “Piercing the Corporate Veil” occurs when a court, in the interest of justice or fairness,” holds shareholders personally liable for corporate acts. • Court concludes that shareholders used corporation as a “shield” from illegal activity.

29. Disregarding the Corporate Entity • Factors a court considers: • 3rd party tricked into dealing with a corporation rather than the individual. • Corporation is set up never to make a profit or remain insolvent or is under capitalized.

30. Disregarding the Corporate Entity • Cont’d: • Statutory formalities are not followed. • Corporation is “alter ego” of majority shareholder and personal and corporate interest are commingled such that the corporation has no separate identity. • CASE 25.3Dimmitt & Owens Financial, Inc. v. Superior Sports Products, Inc. (2002).

31. Corporate Financing

32. Bonds

33. Stocks • Common Stock: represents true ownership of a corporation. Provides pro-rata (proportional) ownership interest reflected in control, earnings and assets. • Preferred Stock: has preferences over common stock. • Cumulative Preferred. • Participating Preferred. • Convertible Preferred. • Redeemable or Callable Preferred.

34. Merger and Consolidation • Corporations can grow and expand by: • Mergers. • Consolidation. • Purchase of another corporation’s assets. • Purchases of a controlling interest in another corporation.

35. A B A Merger • Legal combination of two or more corporations (A & B) after which only A corporation remains. A’s articles of incorporation are amended to include articles of merger. • After merger, A continues as the surviving corporation with all of B’s rights and obligations.

36. A B C Consolidation • Occurs when two or more corporations (A & B) combine such that both cease to exist and a new corporation emerges which has all the rights and obligations previously held by A and B. • C’s articles of consolidation take the place of the original articles of A and B.

37. Procedure for Merger and Consolidation • Board of Directors of each corporation involved must approve the merger plan. • Next Shareholders of each corporation must approve. • Then, articles filed with Secretary of State and who issues a certificate of merger to the surviving corporation or a certificate of consolidation to the newly consolidated corporation.

38. Procedure for Merger and Consolidation • When allowed by state statute, a shareholder has the right to dissent and be bought out” of his/her shares (shareholder’s appraisal right). • In cases of: merger, consolidation, sale of most of corporation’s assets not in the ordinary course of business, adverse amendments to the articles of incorporation. • Certain procedures must be followed.

39. Procedure for Merger and Consolidation • Dissent • Dissenting shareholder must give written notice. • The notice shows what dissenters will cost corporation if action takes place. • Appraisal Right • Make written offer to purchase a dissenting shareholder’s stock, accompanied by current balance sheet and income statement for the corporation.

40. Purchase of Stock • Alternative to merger or consolidation is the purchase of a controlling interest (e.g., 51%) of a “target” corporation’s stock (called a “takeover”) giving the purchaser corporation controlling interest in the target. • The aggressor deals entirely with the target’s shareholders. • Proxy Fight, Leveraged Buyout.

41. Purchase of Stock: Tender • Tender Offers. • A publicly advertised offer addressed to all shareholders of the target is called a tender offer. • Tender offer is usually higher than market value per share but conditioned on the acquisition of a certain % of shares. • Can be in exchange for aggressor's stock. • Sec strictly regulates tender offers.

42. Termination • Termination of a corporation, like a partnership, consists of two phases: • Dissolution (voluntary or involuntary); and • Liquidation. • Dissolution can brought about by: • Act of legislature. • Certificate expiration. • Voluntary approval by shareholders and board. • Unanimous action by all shareholders. • Court order.

43. Dissolution • Shareholders can initiate dissolution by a unanimous vote to dissolve. • Or, the Board can initiate by submitting a proposal to the shareholders for a vote at the annual shareholder meeting or specially-called meeting.

44. Involuntary Dissolution • Secretary of State or Attorney General can dissolve if Corporation: • Fails to pay taxes. • Fails to file annual report. • Fails to designate registered agent for service. • Secured its charter through fraud. • Abused its corporate power. • Violated criminal laws. • Failed to commence business operations. • Abandoned operations before start-up.

45. Involuntary Dissolution • Close corporations: • May be able to be dissolved by one shareholder on the happening of a certain event. • Gives the same power to a shareholder to dissolve as a partner has for a partnership.

46. Involuntary Dissolution • Court can dissolve a corporation if: • Board is deadlocked and irreparable damage to corporation will ensue. • Mismanagement. • Minority shareholder is “frozen out” or oppressed.

47. Liquidation • Voluntary Dissolution. • Board liquidates and acts as trustees of assets. • Court will appoint a receiver if: • Board refuses; or • Creditors want a receiver. • Involuntary Dissolution. • Court appoints receiver.