What are the general elements of forming a general partnership?
- Two or more persons
- Who agree expressly or impliedly
- To carry on as co-workers a business for profit
Is writing generally necessary to create a general partnership?
What if the partnership is to own real property?
A general partnership can be formed whenever two or more persons agree to enter into a business for profit as co-owners.
The agreement need not be in writing; indeed it need not even be oral. It can be implied from conduct.
That fact that the partnership will own proeprty does not change this.
If the general partnership agreement is silent, how are profits and losses dividend in a partnership?
If the partnership agreement is silent, profits and losses are divided equally, regardless of the contribution of each partner.
For what services is a partner entitled to compensation if the partnership agreement is silent on the issue?
A partner is generally not entitled to any compensation. There is an exception for the last surviving partner for services rendered to wind up the partnership's affairs.
A partner's interest in p-ship property is subject to attachment to satisfy the partner's alimony obligation. True or False?
False, A partner has no right to possess p-ship property other than for p-ship purposes, and a partner's creditors cannot get any greater rights than the partner's in such property.
What is the liability of each partner for the p-ship obligations?
Partners are personally liable for all contracts entered into and all torts committed by other partners within the scope of the partnership business or which are otherwise authorized.
Can a limited p-ship be formed with limited liability for all partners?
No. A limited p-ship must have at least one general partner who will be personally liable for all partnership debts.
Is a limited partner personally liable for the debts of the p-ship?
No. A limited partner is not personally liable for the debts of the p-ship unless the limited partner is also a general partner, or, under the revised Uniform Limited Partnership Act, allows his name to be used in the p-ship agreement, or takes control of the p-ship and a creditor reasonably believes the limited partner is a general partner.
A limited partner has apparent authority to bind his limited p-ship on contracts apparently within the scope of the p-ship business. True or False?
False. Limited partners are like the shareholders of a corporation and have no apparent authority to bind their p-ship in contract.
Can a limited liability company be formed with limited liability for all members?
Yes. Members of a limited liability company are not personally liable for obligations of the company.
A member of a limited liability company has apparent authority to bind the company on contracts apparently within the scope of the company's business unless the company's articles of organization provide otherwise.
True or False?
True. Generally, unless the articles of organization provide otherwise, LLCs are member-managed, and the members have apparent authority to bind the company on contracts apparently within the scope of the company's business.
Under the Uniform Limited Liability Company Act (ULLCA), if the articles of organization and operating agreement are silent, how are profits and losses divided in a LLC?
Under the Uniform Limited Liability Company Act (ULLCA), profits are shared equally, regardless of capital contributions.
When does a member of LLC have a right to distribution?
A member of a LLC has a right to distribution when the articles of organization, an operating agreement, or an agreement of the members so provides.
Is a member of the LLC personally liable for the debts of the LLC?
What if the members is also a manager of the LLC?
No, a member of an LLC is like alimited partner or shareholder and is not personally liable for the LLC's obligations. If the member is also a manager, the member is treated as an officer or director of a corporation rather than as a general partner of a limited partnership and is not personally liable for the obligations of the LLC.
Corporation: A promotor, like a shareholder, officer, or director, is not liable on contracts the promoter makes on behalf of the corporations. True or False?
False, generally, promoters are personally liable on contracts that they enter into on behalf of the corporation to be formed.
What must be included in the articles of incorporation for a corporation?
- Name of the corporation
- Names and addresses of the corporation's registered agent (on whom process may be served if the corp is sued)
- Names and addresses of each of the incorporators
- Number of shares authorized to be issued
- A clause entitling one or more classes of stock to voting rights
Corporation: For what reasons do courts typically disregard the corporate entity (i.e., "pierce the corporate veil")?
Who is held liable?
- Shareholders, officers, or directors commingle personal funds with corporate funds or otherwise ignore most corporate formalities ("alter ego" theory).
- The corporation is inadequately capitalized at the time of formation.
- The corporation was formed to defraud creditors.
If the corporate entity is disregarded (i.e., the corporative veil is "pierced"), courts can reach the responsible shareholders, officers, and/or directors.
What is the minimum number of directors for a corporation?
Under RMBCA, a corporation needs only one director, but the articles of incorporation or bylaws may require as many directors as desired, without limitation.
What is the minimum number of officers for a corporation?
The minimum number of officers for a corporation is one. The duty of the officer is to record the minutes of directors' and shareholders' meetingsw and to authenticate corporate records. However, corporations are free to provide for more officers in the bylaws.
What is the procedure for a fundamental change?
Fundamental changes procedure:
- Board resolution (majority)
- Notice to shareholders
- Shareholder approval (majority)
- Filing of amendments to the articles
What are the fundamental corporate changes that require shareholder approval?
Amendments to the articles of incorporation
Mergers, consolidations, and compulsory share exchanges
Sale of substantially all the corporation's assets outside the regular course of business
When does a shareholder of common and/or preferred stock have a right to a dividend?
Generally, shareholders do not have a right to dividend unless and until a dividend is declared by the board of directors.
Once a dividend is declared, shareholders have the status of secured creditors. True or False?
False. Once a dividend is declared, shareholders have the status of unsecured creditors.
Corporations: What is the advantage of cumulative preferred stock?
The advantage of cumulative preferred stock is that even if a dividend is not declared in a particular year, the right to receive that dividend (if dividends are ever declared) accumulates and that accumulated, but unpaid dividend, must be paid before common shareholders can receive any dividend (although there is no right to the dividend until it is declared).
Corporation: What is the main point regarding the inspection rights of shareholders?
Shareholders (or their agents, attorneys, accountants, etc.) may inspect for any proper purpose (a purpose related to the shareholder's interest in the corporation; e.g., to start a derivative suit or to solicit shareholders to vote for certain directors), but shareholders also may be denied inspection for improper purposes (a purpose personal to the shareholder; e.g., to get names for a retail mailing list).
Which of the following businesses can be formed without filing a formation document with the state: partnership, limited partnership, limited liability company, or corporation?
A partnership can be formed without filing a formation document with the state. All of the other businesses require a filing to be formed.
How is a limited partnership similar to a corporation?
A limited partnership is similar to a corporation in that both can be formed only by compliance with the statute and filing with the secretary of state, and both limited partnerships and corporations provide limited liability for investors (except general partners).
Which of the following businesses offer flow-through taxation for their owners: partnership, limited partnership, limited liability company, or corporation?
A partnership, limited partnership, limited liability company (although owners of a LLC may opt to be taxed as a C corporation), and corporations that elect S-corporation status offer flow-through taxation for their owners. C corporations do nto offer flow-through taxation.