Shareholders Flashcards
(37 cards)
Do SHs get to manage the corp?
Generally, no because the board manages. BUT, SHs can run the corp directly in a close corp.
Close Corporation Characteristics
1) Few SHs
2) Stock is not publicly traded
If the corp’s stock is not traded on a national exchange, SHs can eliminate the board and run the corp. directly. To do this, it must be in the articles and approved by all SHs OR by unanimous written SH agreement
Professional Corporation
Licensed professionals, including lawyers, medical professions, and CPAs, may incorporate as a professional corp. or professional association. The name must have one of those phrases or “P.C” or “P.A.” The articles must state that the purpose is to practice in a particular profession.
SHs are generally not liable for corp. obligations or for other professional malpractice
Can SHs be held liable for the acts or debts of the corp?
Generally, no because the corp is liable for what it does. BUT, a SH might be personally liable for what the corp did if the court pierces the corporate veil (PCV). This can only happen in close corporations.
Piercing the Corporate Veil
To PCV and hold SHs personally liable (for what should be a corporate debt):
1) they must have abused the privilege of incorporating, and
2) Fairness must require holding them liable
3) must be a close corporation
Classic Fact Patterns for Piercing the Corporate Veil
1) Alter ego (identity of interests)
2) Undercapitalization when formed
SH Derivative Suits
In a derivative suite, a SH is suing to enforce the corp’s claim, not her own personal claim. If the corp could have brought this suit instead of a SH, then it can be a derivative suit.
If the SH wins the suit, the corp gets the money. SH plaintiff can gets costs and attorney’s fees
If SH losses the derivative suit, cannot recover costs and attorneys’ fees and may be liable to defendant corp if sued without reasonable cause
Requirements for bringing a SH derivative suit
1) Stock ownership when the claim arose and throughout the suit
2) Adequate Representation of the corp’s interest
3) Must make a written demand on the corp that the corp bring the suit
4) The corp must be joined, but as a defendant.
5) Parties can settle or dismiss the suit only with court approval
When demand is excused
When demand is futile (if the directors will be the defendants in the case)
SH voting: who votes?
General rule: the record SH as of the record date has the right to vote
Record SH
The person shown as the owner in the corp records.
Record Date
Voter eligibility cut-off
Exceptions to general rule on SH voting
1) The corp re-acquires stock before the record date, so it is the owner of this “treasury stock” as of the record date. Nobody votes this stock
2) Death of SH ->SH’s executor can vote the shares
3) Proxies
Proxy
A writing signed by record SH directed to secretary of corp authorizing another to vote the shares. Proxy is good for 11 months unless it says otherwise
Revoking a proxy
A proxy can be revoked in writing OR by attending a meeting and voting. The ONLY way to have an irrevocable proxy is if it is a proxy coupled with an interest.
Requirements for a voting trust
SHs pool their voting power by
1) written trust agreement, controlling how the shares will be voted,
2) copy to the corp
3) transfer legal title to the voting trustee
4) original SHs receive trust certificates and retain all SH rights except for voting
(10 year maximum)
Requirements for voting agreement (pooling)
1) In writing and signed
2) Some states will not specifically enforce voting agreements. In these states, a voting trust is preferable
Where do SHs vote?
SHs usually take action at a meeting. They can also act by unanimous written consent signed by holders of all voting shares
Two Kinds of SH Meetings:
1) Annual Meeting: Purpose is to elect directors. If no annual meeting is held within 15 months, a shareholder can petition the court to order one.
2) Special Meeting: can be called by the board, the president, or the holders of at least 10 percent of the voting shares, or anyone else authorized in the bylaws
Notice Requirement for Meetings
Must give written notice to every SH entitled to vote. Deliver it between 10-60 days before the meeting. Notice must state the time and purpose of the meeting.
For special meeting, the notice must also state the purpose of the meeting.
Consequence of Failure to Give Proper Notice for Meetings
Action taken at the meeting is void unless those not sent notice waive the notice defect.
How can waiver occur?
1) Express - in writing and signed anytime, OR
2) Implied - attend the meeting without objection
How do SHs vote?
SHs generally get to vote on:
1) to elect directors,
2) to remove directors, and
3) on fundamental corporate changes.
Quorum
Every time the SHs vote, there must be a quorum represented at the meeting. General rule: a quorum requires a majority of outstanding shares.
A SH quorum cannot be lost if people leave the meeting (different from directors)
