Flashcards in Shareholders Deck (25):
Can SHs manage a corporation?
Generally, NO! (the BOD manages the corporation) EXCEPTION: SHs CAN manage the business directly in a "close corporation"
What is a "close corporation"?
A corporation w/ "FEW" SHs The stk is NOT publicly traded
Do you NEED to have SH management in a close corporation?
NO! You do not HAVE to have SH mgmt; you CAN have a BOD BUT, if you want to have SH mgmt, you need 4 things... 1) a prvn in the certificate restricting or transferring bd pwr to SHs (or others); 2) ALL incorporators or SHs (voting AND nonvoting) must approve the certificate; 3) ALL subsequent SHs have notice of the special certificate; AND 4) share are NOT listed on an exchange or regularly quoted OTC dealer
In a close corporation run by SHs, who owes the duties of care AND loyalty?
The managing SHs owe the duties of CARE and LOYALTY to the corporation
In a close corporation, what duties are owed to the minority SHs?
Fid duties are imposed on SHs dealing w/ EA. OTHER: cntrling SHs cannot use their pwr... for PERSONAL GAIN at the expense of the minority SHs or the corporation; OR
to OPPRESS minority SHs or the corporation
They owe a duty of UTMOST good faith Policy: cts want to give minority SHs a remedy for behavior that "defeats reasonable expectations for investing"
What is a professional service corporation?
Members of a LICENSED profession (doctors or lawyers) CANNOT practice the prof'n thru a general business corp →they form a professional service corporation Abbreviated "P.C."
Certificate MUST meet the general corporation reqs of the BCL: must also indicate the profession to be practiced AND the names/addys of original SHs, directors or officers
SHs, officers AND directors MUST be licensed, but can hire non-profs as employees (certification of status MUST BE in the certificate) If a SH dies or is disqualified → the P.C. MUST buy the stock
Each profn'l is resp for his OWN malpractice, BUT not that of the others (thus, better than a partnership)
Profn'ls are NOT resp for Ks entered into by the entity in its OWN name
What 2 ways can SHs "pierce the corporate veil"?
REMEMBER: general rule is that SHs are NOT liable for what the corp does; BUT in a CLOSE corporation, SHs can be PERSONALLY liable if (i) they abuse the privilege of incorporation; AND (ii) fairness reqs holding them liable (to prevent fraud) ***[ALWAYS STATE THE ABOVE RULE FIRST]*** Two fact patterns... 1) Alter ego: the SHs exercises COMPLETE domination over the company "to perpetrate fraud or injustice" to the πs Commingling personal and corporate funds
Use of corp assets for personal use
NOTE: the "SH" can be another corp entity
2) Undercapitalization: SH failed to INVEST ENOUGH to cover prospective liabilities NOTE: undercapitalization ALONE is NOT enough to PCV in NY → you'd ALSO need complete domination OR fraud/injsutice
NOTE: PCV is more likely to be in TORT vs. K
In a close corporation, what are the Top 10 SHs personally liable for?
TOP 10 SHs are personal liable for wages AND benefits of the company's emps
What is a SH derivative suit?
When a SH is suing to enforce the CORPORATION'S claim (NOT her own personal claim) Always ask: "could the CORPORATION have brought this suit?"; If YES → it's a derivative suit
Normally for breaches of fid. duties owed to the corp (care/loyalty)
What is a "direct suit"?
When a SH is suing for a PERSONAL claim (NOT one on behalf of the corporation, derviative)
What happens if a SH wins OR loses a derivative suit?
SH wins: 1) Corp gets money If recovery by the corporation would return the money to the violators, then maybe SH gets award (e.g. in a close corporation)
2) Suing SH gets atty’s fees SH loses: 1) SH cannot recover costs & expenses 2) SH probably liable to the Corp for its costs 3) SHs CANNOT sue the same ∆s on the same trxn (i.e. res judicata)
What are the 6 reqs for a proper SH derivative suit?
1) Stock ownership when claim AROSE until JUDGMENT (or gotten it by operation of law from someone who did, like inheritance or divorce decree) 2) SH must adequately rep the interests of the corp AND the SHs 3) SH can be req'd to post a BOND for ∆'s costs NOT req'd if she owns ≥5% of the stock OR her stock is worth more than $50k
4) SH must make a DEMAND on directors that the corporation sue NOT req'd if doing so would be FUTILE... Maj of BOD is interested (or under cntrl of interested dirs)
The BOD violated duty of care
The trxn was SO egregious on its face that it COULDN'T have been based on sound jdmt
If bd REFUSES after demand, SH could sue ONLY IF... Maj of BOD is interested; OR
The PROCEDURE was incomplete/inadequate (e.g. didn't use a special litigation committee, SLC)
5) SH must plead w/ "PARTICULARITY her effors to get the BOD to sue or why it was FUTILE to do so" 6) The CORPORATION must be joined in the litigation AS A ∆(!!!)
What 2 factors do a ct consider when deciding to dismiss a derivative suit (based on SLC motion)?
1) The INDEPENDENCE of the those making the investigation 2) Sufficiency of the INVESTIGATION If these two things are OK, the ct WILL dismiss
Can parties DISMISS or SETTLE a derivative suit?
Yes, but ONLY with ct approval
Can a director OR officer ever bring a derivative suit?
A director or officer CAN sue another director or officer to compel her to ACCOUNT for violation of duties OR MISSAPPROPRIATION fo corp assets The suing director or officer does NOT have to meet the reqs for bringing a SH derivative suit
The director or officer sues in OWN name, but recovery goes to the CORP
Which SHs get to vote their shares?
General rule: record owner as of record date has the right to vote Record owner = whomever Corp records indicate
Record date = voter eligibility cut-off [set b/t 10-60 days before the meeting]
EXCEPTIONS: 1) Corp reacquires stock → NO vote for treasury stk 2) SH dies after record date → executor can vote 3) Proxies: OK for SH voting Proxies is a (1) writing; (2) signed by record SH or auth. agent; (3) directed to the corp. secretary; (4) authorizing another to vote shares
Proxies are ONLY good for 11 months, unless says otherwise
Proxies can be revoked (even if "irrevocable") by: (1) a writing; OR (2) the SH attending the meeting NOTE: you CAN have an "irrevocable proxy" IF (i) it says "irrevocable"; AND (ii) the proxy-holder has SOME interest in the stock other than voting (e.g. an option to buy the stock); this is called "proxy coupled w/ an interest"
NOTE: SH death ONLY revokes proxy WHEN written notice of death is received by the corp secretary
What are the 2 ways for SHs to "block vote"?
Pockets of SH can pool their votes via.. 1) Voting trust 2) Voting ("pooling") agreement NOTE: When giving advice, MUST state BOTH
What are the 4 reqs of a voting trust?
1) Written trust agmt cntrling how the share will be voted; 2) Copy of agmt to the corporation; 3) Transfer of legal title of shs to voting trustee; AND 4) Original SHs receive voting trust certificates and retain ALL rights except for voting NOTE: the MAXIMUM time ltd on voting trusts in 10 YEARS
What are the 2 reqs for a voting ("pooling") agmt?
1) Entered into by SHs (NOT directors) 2) Agmt must be written AND signed NOTE: Two SHs CAN agree to vote their shs to elect each other, BUT they CANNOT agree abt what actions they'd take once in office (NO voting agmt for director voting)
Voting agmts are NOT specifically enforceable
A proxy given SUBJECT TO a voting agreement is IRREVOCABLE, IF it states so
What are 2 ways for SHs to validly vote?
1) Voting by written consent of the holders of ALL vals shares 2) Voting at an annual OR special meeting
What are 2 types of SH meetings and their key aspects?
1) Annual meeting: where directors are elected Just need a PLURALITY (not a majority of votes) for election of directors (majority for everything else)
If annual mtg is not held, one can be COMPELLED by a ct order
2) Special meeting Called by: (i) the BOD; OR (ii) anyone provided in the certificate or bylaws
NOTE: Either meeting can be held ANYWHERE (no NY req)
What is the notice req for a SH meeting?
For annual AND special mtgs: corp must give WRITTEN notice (e-mail OK) to every SH entitled to vote b/t 10-60 days BEFORE the meeting Notice must ALWAYS state the time/place
If the meeting is abt something that COULD req APPRAISAL RIGHTS, the notice must say so and tell why
Special meetings: must ALSO state who called it AND the purpose of the meeting Must be abt something SHs can ACTUALLY vote on (i.e. it cannot be a mtg to remove an OFFICER)
NOTE: the mtg will be LTD to ONLY that purpose)
IF NO notice is given, the action at the meeting is VOID BUT, the action could be upheld IF those NOT given notice WAIVE the defect by: (i) doing so in a signed writing; OR (ii) attend the meeting w/o objection
What are the quorum reqs for a SH meeting?
NOTE: The focus is on the # OF SHARES, NOT the # of SHs Generally, quorum = majority of outstanding shares The certificate or bylaws CAN lower the majority quorum req; provided it's not lowered BELOW 1/3d
A SUPERMAJORITY quorum req can be imposed ONLY IF it's in the certificate (NOT bylaws)
NOTE: once a quorum is ESTABLISHED it CANNOT be lost due to voter attrition (Cf. director voting quorum reqs)
NOTE: we can NEVER reduce the req of majority approval Majority means of those ACTUALLY VOTING (abstentions don't count)
A SUPERMAJORITY vote req can be imposed ONLY IF it's in the certificate (NOT bylaws)
What are key apsects of cumulative voting?
A voting device that can help minority SHs get representation on the BOD Cumulative voting is ONLY available WHEN a prvn is in the CERTIFICATE; AND
SHs are voting in DIRECTOR elections
# VOTES received = # of shares X # of directors to be elected Votes can be distributed in any way (i.e. can be put behind one candidate)
% of shares req'd to elect ONE director = 100 / (X + 1) X = # of directors being directed
Must get ONE more share than the calc'd %