Wiki Law School will soon be moving! Please update your bookmarks. Our future address is www.wikilawschool.org |
Editing Business Associations
From wikilawschool.net. Wiki Law School does not provide legal advice. For educational purposes only.
The edit can be undone. Please check the comparison below to verify that this is what you want to do, and then publish the changes below to finish undoing the edit.
Latest revision | Your text | ||
Line 1: | Line 1: | ||
{{Infobox | {{Infobox Outline | ||
| subject = Business Associations | | subject = Business Associations | ||
| book_one = Business Organizations: Cases, Problems, and Case Studies Smith, Williams | | book_one = Business Organizations: Cases, Problems, and Case Studies Smith, Williams | ||
Line 25: | Line 25: | ||
#Raising Capital | #Raising Capital | ||
<div>'''SOLE PROPRIETORSHIP'''</div> | |||
* <u>'''SP & 6 Factors </u>(Doesn't make out too well)''' | * <u>'''SP & 6 Factors </u>(Doesn't make out too well)''' | ||
** '''1. Liability''' | ** '''1. Liability''' | ||
Line 49: | Line 47: | ||
*** Only option is through borrowing money (incurring debt) | *** Only option is through borrowing money (incurring debt) | ||
<div>'''GENERAL PARTNERSHIP'''</div> | |||
* '''Association of 2 or more persons to carry on as co-owners, a business for profit''' | * '''Association of 2 or more persons to carry on as co-owners, a business for profit''' | ||
* Are consensual in nature | * Are consensual in nature | ||
Line 99: | Line 97: | ||
**** Often if small partnership, bank may ask for personal guarantee | **** Often if small partnership, bank may ask for personal guarantee | ||
<div><u>'''NON-CORPORATE LIMITED LIABILITY ENTITIES'''</u></div> | |||
<div>'''(1) LIMITED PARTNERSHIPS'''</div> | |||
* '''Have 1 or more General Partners & 1 or more limited partners''' | * '''Have 1 or more General Partners & 1 or more limited partners''' | ||
* LP's are a creature of statute | * LP's are a creature of statute | ||
Line 129: | Line 127: | ||
***** If fiduciary duties are breached, you cannot hind behind your entity | ***** If fiduciary duties are breached, you cannot hind behind your entity | ||
<div>'''(2) LIMITED LIABILITY PARTNERSHIP'''</div> | |||
* '''Designed for professionals that could experience malpractice liability''' | * '''Designed for professionals that could experience malpractice liability''' | ||
* <u>'''LLP & 6 Factors</u>: (Only Liability)''' | * <u>'''LLP & 6 Factors</u>: (Only Liability)''' | ||
Line 137: | Line 135: | ||
**** Entity itself is responsible (which is why many statutes require malpractice insurance) | **** Entity itself is responsible (which is why many statutes require malpractice insurance) | ||
<div>'''(3) LIMITED LIABILITY COMPANY'''</div> | |||
* Creature of statute- must file '''''articles of organization''''' filed with secretary of state (of state in qs) | * Creature of statute- must file '''''articles of organization''''' filed with secretary of state (of state in qs) | ||
* Has some attributes of a corporation & many attributes of a partnership | * Has some attributes of a corporation & many attributes of a partnership | ||
Line 166: | Line 164: | ||
* Creature of statute- Must file Certificate/Articles of Corporation/Corporate Charter | * Creature of statute- Must file Certificate/Articles of Corporation/Corporate Charter | ||
* <u>'''Corporation & 6 Factors</u>: (Makes out very nicely)''' | * <u>'''Corporation & 6 Factors</u>: (Makes out very nicely)''' | ||
* | ** '''1. Liability''' | ||
* | *** Quintessential limited liability entity (Exception- veil piercing) | ||
* | ** '''2. Management and control''' | ||
* | *** Publicly Traded | ||
* | **** Those who own the Corp (stockholders) are not often the people on board or officers | ||
* | *** Privately Held | ||
* | **** Stockholders wear all the hats | ||
* | ** '''3. Transferability''' | ||
* | *** Stock is considered personal property, and is freely transferable, so long as there are no contractual restrictions | ||
* | *** Public Corp | ||
* | **** Securities laws can impede the ability to transfer stock freely | ||
* | ** '''4. Duration ''' | ||
* | *** Perpetual existence, but there can be an end date put in the corp. charter | ||
* | ** '''5. Taxation''' | ||
* | *** <u>Election of Subchapter C</u>→ Double Taxation | ||
* | **** Pays Corp income tax at entity level | ||
* | **** If it distributes money through dividends, then shareholders must pay income tax on the dividend as well | ||
* | *** <u>Election of Subchapter S</u>→ Flow-through tax entity | ||
* | **** Each shareholder gets a Schedule K-1, allocating (not distributing) to them their share of profit or losses | ||
* | ***** Individual shareholder then has to report their own income on their own Form 1040 | ||
* | **** <u>'''Requirements to file under Subchapter S:'''</u> | ||
* | ***** '''1. Can only have up to 100 Shareholders''' | ||
* | ***** '''2. Identity of Individual ''' | ||
* | ****** Each shareholder must be an individual (a person) | ||
* | ****** Individual must be a US Citizen or Resident Alien | ||
* | ****** Individual can be a qualified estate or trust | ||
* | ****** Another S Corp can also invest into your S-Corp. | ||
* | ******* BUT a C-Corp cannot. | ||
* | ******** The moment a C-Corp invests into your S-Corp, you lose your S-Corp. election, and you'll be taxed as a C-Corp from that moment forward | ||
* | ********* You can have a Stub-Accounting period (1<sup>st</sup> part of year you're taxed as S-Corp, and 2<sup>nd</sup> part of year you're taxed as C-Corp) | ||
* | ******* Anyone that is not in the US cannot invest into an S-Corp either (because US gov't doesn't care about them) | ||
* | ******** So, you can just form an LLC | ||
* | ******** Also, just because you start off as one entity, doesn't mean you cannot switch to a different entity (Many LLC's convert to the corporate form) | ||
* | ***** '''3. Capital Structure'''- S-Corp can only issue 1 type of stock (common stock) | ||
* | ***** '''4. Subsidiaries''' | ||
* | ****** S-Corp CAN own shares in other corporations (S or C corp) | ||
* | ******* If S-Corp. can own 100% of another C-Corp, that C-Corp is a "'''''wholly owned subsidiary"''''' | ||
* | ******* If S-Corp. can own 40% of another C-Corp, that C-Corp is a "'''''partially owned subsidiary"''''' | ||
* | ****** BUT C-Corp CANNOT invest into a S-Corp | ||
* | ***** <u>Policy Justification of S-Corps</u>—Gov't trying to promote entrepreneurialism, and the creation of new corporations | ||
* | ****** Foster new business, give it a tax break, and only when it becomes more successful (grows and succeeds), does it need to pay that double taxation to the government | ||
* | ** '''6. Raising Capital''' | ||
* | *** Tremendous Flexibility | ||
* | *** Can borrow money from a bank too, but typically issues securities | ||
* | *** Issues <u>One or more of three types of Securities</u> | ||
* | **** '''1. Debt Securities''' (Borrowed Money) | ||
* | ***** '''''(1) Bonds''''' | ||
* | ****** Long term IOU (30 years) | ||
* | ****** Also tend to be secured/collateralized | ||
* | ***** '''''(2) Debentures''''' | ||
* | ****** Also long term IOU (20-30 years) | ||
* | ****** NOT collateralized | ||
* | ***** '''''(3) Notes''''' | ||
* | ****** Short term (3-7 years) | ||
* | ****** May/may not be collateralized | ||
* | ***** Claims of debt security holders are CONTRACT CLAIMS | ||
* | ***** Also, upside potential is capped at the interest rate in the contract | ||
* | **** '''2. Preferred Stock''' | ||
* | ***** Contract claimants | ||
* | ***** Del- Certificate of Designation sets out terms | ||
* | **** '''3. Common Stock''' | ||
* | ***** Residual claimants (they get what is left) | ||
* | ***** Last in line if things go bad, BUT 1<sup>st</sup> in line when things are good | ||
* <u>'''Corporations Balance Sheet (ASSETS = LIABILITIES + OWNER'S EQUITY)'''</u> | * <u>'''Corporations Balance Sheet (ASSETS = LIABILITIES + OWNER'S EQUITY)'''</u> | ||
Line 501: | Line 485: | ||
***** Across the board→ In corp. charter | ***** Across the board→ In corp. charter | ||
**** But, it's not unusual for an investor to say "by contract I want preemptive rights, so that I get preemptive rights and the other holders do not" | **** But, it's not unusual for an investor to say "by contract I want preemptive rights, so that I get preemptive rights and the other holders do not" | ||
***** Individually→ Contractually | ***** Individually→ Contractually | ||
==CORPORATE FORMATION AND LIABILITY ISSUES== | ==CORPORATE FORMATION AND LIABILITY ISSUES== | ||
Line 1,503: | Line 1,487: | ||
*** Ms. Harris had the opportunity and did in fact purchase 2 parcels of land adjacent to the golf course, without 1<sup>st</sup> offering them to the golf course so that it can purchase them | *** Ms. Harris had the opportunity and did in fact purchase 2 parcels of land adjacent to the golf course, without 1<sup>st</sup> offering them to the golf course so that it can purchase them | ||
*** Delaware Line of Business Test '' | *** Delaware Line of Business Test ''Guth v. Loft, Inc. '' | ||
**** Could the Corporation pursue opportunity if presented? | **** Could the Corporation pursue opportunity if presented? | ||
**** Does the transaction involve the same line of business? Would the director put it in direct competition with its own corporation? | **** Does the transaction involve the same line of business? Would the director put it in direct competition with its own corporation? | ||
Line 1,512: | Line 1,496: | ||
**** Too Vague – What is fair? | **** Too Vague – What is fair? | ||
*** Adopted ALI § 5.05 | *** Adopted ALI § 5.05 | ||
**** Won due to statute of limitations | **** Won due to statute of limitations | ||
=====Entrenchment Activities===== | =====Entrenchment Activities===== | ||
Line 1,651: | Line 1,635: | ||
** '''Entire or Intrinsic Fairness''' would apply | ** '''Entire or Intrinsic Fairness''' would apply | ||
*** Shifts the burden of proof to the Defendant-Directors & Controlling Stockholder to prove that what they did is intrinsically fair to the Corporation and its minority stockholders | *** Shifts the burden of proof to the Defendant-Directors & Controlling Stockholder to prove that what they did is intrinsically fair to the Corporation and its minority stockholders | ||
* | |||
* ''Sinclair Oil v. Levien—''Sinclair using its dominance over subsidiary | * ''Sinclair Oil v. Levien—''Sinclair using its dominance over subsidiary | ||
** Parent company (Sinclair) owned 97% of subsidiary-Sinven (minority owned remaining 3%) | ** Parent company (Sinclair) owned 97% of subsidiary-Sinven (minority owned remaining 3%) | ||
Line 1,669: | Line 1,653: | ||
** Minority Stockholder wanted to participate in the '''''Control Premium''''' that Controlling Shareholder group was about to receive when they sold their controlling stake | ** Minority Stockholder wanted to participate in the '''''Control Premium''''' that Controlling Shareholder group was about to receive when they sold their controlling stake | ||
** Rule- Minority shareholders are entitled to protection from abuse by controlling stockholders, BUT CANNOT inhibit other stockholders' legitimate interests. Shares of stock are personal property which could be sold to whomever you please, for whatever price you please | ** Rule- Minority shareholders are entitled to protection from abuse by controlling stockholders, BUT CANNOT inhibit other stockholders' legitimate interests. Shares of stock are personal property which could be sold to whomever you please, for whatever price you please | ||
*** For this reason, there is a Premium—The added amount an investor is willing to pay for the privilege of directly influencing the corporation's affairs (acquiring control) | *** For this reason, there is a Premium—The added amount an investor is willing to pay for the privilege of directly influencing the corporation's affairs (acquiring control) | ||
*** Exceptions- Contractual Provisions allow minority to piggy-back | *** Exceptions- Contractual Provisions allow minority to piggy-back | ||
**** "Tag Along" Provision | **** "Tag Along" Provision | ||
Minority shareholder gets to tag along with any sale by a controlling stockholder of its stake to some 3rd party | |||
They get to pro rate participate in that sale by contributing some of their shares to be sold | |||
**** "Drag Along" Provision | **** "Drag Along" Provision | ||
***** Most time the 3<sup>rd</sup> party doesn't want to just buy the controlling stake, but rather want to buy everything | ***** Most time the 3<sup>rd</sup> party doesn't want to just buy the controlling stake, but rather want to buy everything | ||
****** So it's not unusual to see this provision that says "if the controlling stockholder finds a 3<sup>rd</sup> party to buy its stake, contractually it can drag along all the minority stockholders and force them to sell as well at the same price the controller is receiving" | ****** So it's not unusual to see this provision that says "if the controlling stockholder finds a 3<sup>rd</sup> party to buy its stake, contractually it can drag along all the minority stockholders and force them to sell as well at the same price the controller is receiving" | ||
Line 1,680: | Line 1,671: | ||
<div>'''FORWARD & REVERSE STOCK SPLITS'''</div> | <div>'''FORWARD & REVERSE STOCK SPLITS'''</div> | ||
'''''Forward Stock split''''' | * '''''Forward Stock split'' ''' Take one expensively priced share and break it into pieces that will decrease the price per piece. | ||
2-for-1 Stock Split—Ex: If you own 1 share valued at $100 – via the stock split you would have 2 shares worth $50. | |||
==DERIVATIVE CLAIMS== | Purpose: | ||
1. Makes stock more affordable to public | |||
There is more demand for a slice of pizza than there is for a whole pie. | |||
This is good, because you don't lose anything and it makes it more affordable for people to buy stock and the company becomes better off financially. | |||
2. This is a good sign to the public | |||
People recognize that the company is doing so well that the value of your stock is so high and that you have to lower your stock price in order to make it more affordable | |||
* Reverse Stock split (Negative symbol in the marketplace) | |||
** Combining shares into one bigger, more expensive share | |||
8 slices of pizza that you want to put back together. Sprinkle cheese and put it back in the oven, the cheese melts and the slices become one. | |||
** <u>'''Purpose:'''</u> | |||
*** '''1. Maintain listing on Index (Nasdaq; NYSE; S&P)''' | |||
**** Your stock, due to poor performance, is selling very low. | |||
**** If you are listed on NASDAQ they don't allow pooly performing stocks like that to be listed and you will be delisted. So, you combine shares into one bigger more expensive share. | |||
**** Ex: If you have 3 shares of stock worth $2 each. After the reverse split you have 1 share at $6 | |||
* | |||
** | |||
*** '''2. It looks better, and people think it's a better company''' | |||
**** BUT a reverse stock split is a negative symbol in the market place – Your stock won't sell at $6, because people recognize that it is just smoke and mirrors and it will really only sell at $5.86 or something like that. | |||
*** '''3. To squeeze out minority shareholders ''' | |||
**** Giving 1 share for every 10,000 shares would do this. For shareholders that have less than 10,000 shares would end up with less than 1 share. You can't own a fraction of a share so the minority shareholders get cashed out and squeezed out. | |||
***** Ex: Assume a company has shareholder A, B, and C | |||
****** A- 1000 shares | |||
****** B and C- 100 shares each | |||
****** Shareholder A can do a reverse sock split that gets rid of minority stockholders by doing a "1 for 1000 split" | |||
==DERIVATIVE CLAIMS== | |||
===THE DERIVATIVE LAWSUIT=== | ===THE DERIVATIVE LAWSUIT=== | ||
<u>'''''Derivative Lawsuit'''''</u> –'''Lawsuits brought by shareholders on behalf of their corporations, designed to protect the corporation from harm, either caused internally by the BoD/Senior Executives themselves, OR perhaps by 3<sup>rd</sup> parties ''' | * <u>'''''Derivative Lawsuit'''''</u> –'''Lawsuits brought by shareholders on behalf of their corporations, designed to protect the corporation from harm, either caused internally by the BoD/Senior Executives themselves, OR perhaps by 3<sup>rd</sup> parties ''' | ||
* Since the corporation owns the claim and has the right to sue in the 1<sup>st</sup> instance, a shareholders derivative lawsuit is called "derivative" because it derives from the corporations right to bring that lawsuit 1<sup>st</sup> (Corp = Nominal Defendant) | ** Since the corporation owns the claim and has the right to sue in the 1<sup>st</sup> instance, a shareholders derivative lawsuit is called "derivative" because it derives from the corporations right to bring that lawsuit 1<sup>st</sup> (Corp = Nominal Defendant) | ||
Strike Suit- (Negative of Deriv. Lawsuits) Lawsuit brought on behalf of the corp., designed to exploit the nuisance value of the lawsuit in order to gain some sort of settlement | |||
Beneficiary of Strike Suit: | |||
Lawyer – b/c they get considerable fees | |||
**Strike Suits are All About Procedure | |||
Professional Plaintiffs – someone who owns only a few shares of stock in all 500 of the Fortune 500 companies and any time a stock price dipped, they would file a complaint alleging mismanagement or fraud. Who funds these stock purchases: Lawyers | |||
Loser of Strike Suit: | |||
Shareholders (Indirectly)—b/c now they owns stock in a company that has less money b/c it had to pay out the settlement | |||
*<u>'''Demand Requirement</u> - '''Under State Law, you MUST make a DEMAND on the BoD to try to get the board to initiate the lawsuit (since it belongs to the corporation 1<sup>st</sup>) | |||
** <nowiki>*Demand requirement helps preserve the discretion of the directors to manage the corporation without inappropriate outside interference by the shareholders (b/c part of managing the corporation is deciding when, if ever, the corp. should bring a lawsuit)</nowiki> | ***Strike Suits are All About Procedure | ||
** '''Nybcl 626(c)''' | |||
** In any derivative action, the complaint must set forth with particularity, the efforts of the plaintiff to secure the initiation of the action by the BoD, for the reasons for not making such an effort | Strike Suit Lawyer Goal→ Hopes to get beyond the corporation's motion to dismiss, b/c then it moves on to discovery and engage in a fishing expedition, causing the senior management a great deal of heartache | ||
*** <u>Demand Requirements Serves 3 Purposes</u> (''Marx v. Akers'') | |||
*** | The strike suit plaintiff does not have much to disclose. | ||
*** | |||
*** | The corporation has lots to disclose – the could request depositions of every employee | ||
*** | |||
** <u>'''''Demand Futility''—Times when making a demand would be FUTILE (pointless)'''</u> | Corporation doesn't want to deal with turning over docs and that they will just settle | ||
*** When BoD or senior managers themselves are the ones causing the harm, and thus are unlikely to sue themselves | |||
**** In these cases the demand should be excused | Corps' Goal→ Get the case dismissed at the Motion to Dismiss stage – if the motion is granted it could chill any other prospective strike suit plaintiffs from attempting a claim | ||
**** Florida has adopted the Universal Demand Statute | |||
***** Says you always must make demand futility, no matter what | * | ||
*** '''Delaware Demand Futility ''' | ** <u>'''Demand Requirement</u> - '''Under State Law, you MUST make a DEMAND on the BoD to try to get the board to initiate the lawsuit (since it belongs to the corporation 1<sup>st</sup>) | ||
**** The directors are disinterested and independent and; | *** <nowiki>*Demand requirement helps preserve the discretion of the directors to manage the corporation without inappropriate outside interference by the shareholders (b/c part of managing the corporation is deciding when, if ever, the corp. should bring a lawsuit)</nowiki> | ||
**** The challenged transactions were otherwise the product of a valid exercise of business judgment. | *** '''Nybcl 626(c)''' | ||
*** '''NY Demand Futility:''' | **** In any derivative action, the complaint must set forth with particularity, the efforts of the plaintiff to secure the initiation of the action by the BoD, for the reasons for not making such an effort | ||
**** Demand excused if the complaint alleges with particularity 1 of 3 things | **** <u>Demand Requirements Serves 3 Purposes</u> (''Marx v. Akers'') | ||
***** (i) It could allege that majority of directors is interested in the challenged transaction, and thus are obviously conflicted about whether they should bring a suit against themselves | ***** '''1. '''Relieves courts from deciding matters of internal corporate governance by providing corporate directors with the opportunity to correct alleged abuses | ||
***** (ii) Could allege that directors didn't fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances | ****** Perhaps it wasn't aware it was a problem | ||
****** Need particularized facts indicating that the directors were incredibly misinformed when making a decision that you are challenging, then how likely is it that they'd focus on your demand? | ***** 2. Provides corporate boards with reasonable protection of harassment by litigation on matters clearly within the directors' discretion | ||
***** (iii) Could allege the challenged transaction was so egregious on its face, that it couldn't have possibly been a product of sound judgment by the directors | ***** 3. It discourages strike suits commenced by shareholders for personal gain, rather than for the benefit of the corporation | ||
**** If you can show 1 of these 3 things, then the need to make a demand would be excused, and you will rightfully be able to court IMMEDIATELY (BJR rule is disable with respect to the board's ability to not take action on your demand) | |||
***** Doesn't mean you'll win in court | * | ||
****** Must disable BJR | ** | ||
****** Fid. Duties, etc. | *** <u>'''''Demand Futility''—Times when making a demand would be FUTILE (pointless)'''</u> | ||
**** When BoD or senior managers themselves are the ones causing the harm, and thus are unlikely to sue themselves | |||
***** In these cases the demand should be excused | |||
***** Florida has adopted the Universal Demand Statute | |||
****** Says you always must make demand futility, no matter what | |||
**** '''Delaware Demand Futility ''' | |||
***** The directors are disinterested and independent and; | |||
***** The challenged transactions were otherwise the product of a valid exercise of business judgment. | |||
**** '''NY Demand Futility:''' | |||
***** Demand excused if the complaint alleges with particularity 1 of 3 things | |||
****** (i) It could allege that majority of directors is interested in the challenged transaction, and thus are obviously conflicted about whether they should bring a suit against themselves | |||
****** (ii) Could allege that directors didn't fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances | |||
******* Need particularized facts indicating that the directors were incredibly misinformed when making a decision that you are challenging, then how likely is it that they'd focus on your demand? | |||
****** (iii) Could allege the challenged transaction was so egregious on its face, that it couldn't have possibly been a product of sound judgment by the directors | |||
***** If you can show 1 of these 3 things, then the need to make a demand would be excused, and you will rightfully be able to court IMMEDIATELY (BJR rule is disable with respect to the board's ability to not take action on your demand) | |||
****** Doesn't mean you'll win in court | |||
******* Must disable BJR | |||
******* Fid. Duties, etc. | |||
* <u>'''Derivative Actions vs. Direct Action'''</u> | |||
** Derivative Action- Brought on behalf of corporations | |||
** Direct Actions- Brought by stockholders in their own right | |||
** ''Tooley v. Donaldson'' | |||
*** <u>2 Part Inquiry to determine if action is Derivative or Direct</u> | |||
**** '''1. Court must determine who suffered the alleged harm ''' | |||
***** Corporation or Suing Stockholders individually | |||
**** '''2. Court must determine who should receive the benefit of any recovery ''' | |||
***** Corporation or Suing Stockholders individually | |||
**** If Shareholder Suffered→ Direct action | |||
**** If Corporation Suffered→ Derivative Action | |||
*** Conditions were not ready yet so, claim isn't ready. Tender offer was not closed. | |||
Class Action Derivative Lawsuits based on Fraud set out in Federal Securities Laws | |||
Note that these are Direct Claims, NOT Derivative Suits | |||
Shareholders brought lawsuits against directors for their lies to the public under anti-fraud rule 10B5 of the SEC. | |||
In 1995, Congress got involved because it felt that these anti-fraud class actions brought by shareholders thinking that the directors must have lied when there was a stock drop | |||
In 1995 Congress passed the Private Securities Litigation Reform Act (PSLRA) which added § 27 of the 1933 Act & § 21D of the 1934 Securities Act which | |||
Says Plaintiff Must to Certify (Targeting Professional Plaintiffs): | |||
1. That you have read the complaint | |||
2. That you did not buy the stock of the company at the direction of your lawyer | |||
3. That you will not receive any compensation as a plaintiff other than your pro rata recovery or awarded by the court | |||
Court now appoints the lead plaintiff. | |||
The complaint needs to be explained. (state of mind, statements) | |||
4. You as a plaintiff have to supply a list of all other actions you have filed by the court in the previous three years | |||
==SHAREHOLDER INFORMATIONAL RIGHTS AND PROXY VOTING== | ==SHAREHOLDER INFORMATIONAL RIGHTS AND PROXY VOTING== |