{"id":173,"date":"2014-09-17T00:42:04","date_gmt":"2014-09-17T00:42:04","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&#038;p=173"},"modified":"2015-04-16T18:47:04","modified_gmt":"2015-04-16T18:47:04","slug":"21-5-corporate-organization","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/21-5-corporate-organization\/","title":{"raw":"Corporate Organization","rendered":"Corporate Organization"},"content":{"raw":"<div class=\"bcc-box bcc-highlight\">\r\n<h3>Learning Objectives<\/h3>\r\nBy the end of this section, you will be able to:\r\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\r\n\t<li>Recognize the steps to issue a corporate charter.<\/li>\r\n\t<li>Know the states\u2019 rights in modifying a corporate charter.<\/li>\r\n\t<li>Discuss factors to consider in selecting a state in which to incorporate.<\/li>\r\n\t<li>Explain the functions and liability of a promoter.<\/li>\r\n\t<li>Understand the business and legal requirements in executing and filing the articles of incorporation.<\/li>\r\n<\/ul>\r\n<\/div>\r\nAs discussed in Section 21.4 \"Classifications of Corporations\", corporate status offers companies many protections. If the owners of a business decide to incorporate after weighing the pros and cons of incorporation, they need to take the steps explained in this section.\r\n<div id=\"mayer_1.0-ch43_s05_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">The Corporate Charter<\/h2>\r\n<div id=\"mayer_1.0-ch43_s05_s01_s01\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Function of the Charter<\/h3>\r\nThe ultimate goal of the incorporation process is issuance of a <span class=\"im_margin_term\"><span class=\"im_glossterm\">corporate charter<\/span><\/span>. The term used for the document varies from state to state. Most states call the basic document filed in the appropriate public office the \u201carticles of incorporation\u201d or \u201ccertificate of incorporation,\u201d but there are other variations. There is no legal significance to these differences in terminology.\r\n\r\nChartering is basically a state prerogative. Congress has chartered several enterprises, including national banks (under the National Banking Act), federal savings and loan associations, national farm loan associations, and the like, but virtually all business corporations are chartered at the state level.\r\n\r\nOriginally a legislative function, chartering is now an administrative function in every state. The secretary of state issues the final indorsement to the articles of incorporation, thus giving them legal effect.\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s01_s02\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Charter as a Contract<\/h3>\r\nThe charter is a contract between the state and the corporation. Under the Contracts Clause of Article I of the Constitution, no state can pass any law \u201cimpairing the obligation of contracts.\u201d In 1816, the question arose whether a state could revoke or amend a corporate charter once granted. The corporation in question was Dartmouth College. The New Hampshire legislature sought to turn the venerable private college, operating under an old royal charter, into a public institution by changing the membership of its board. The case wound up in the Supreme Court. Chief Justice John Marshall ruled that the legislature\u2019s attempt was unconstitutional, because to amend a charter is to impair a contract.<span id=\"mayer_1.0-fn43_007\" class=\"im_footnote\"><em class=\"im_emphasis\">Trustees of Dartmouth College v. Woodward<\/em>, 17 U.S. 518 (1819).<\/span>\r\n\r\nThis decision pleased incorporators because it implied that once a corporation had been created, the state could never modify the powers it had been granted. But, in addition, the ruling seemed to favor monopolies. The theory was that by granting a charter to, say, a railroad corporation, the state was barred from creating any further railroad corporations. Why? Because, the lawyers argued, a competitor would cut into the first company\u2019s business, reducing the value of the charter, hence impairing the contract. Justice Joseph Story, concurring in the <em class=\"im_emphasis\">Dartmouth<\/em> case, had already suggested the way out for the states: \u201cIf the legislature mean to claim such an authority [to alter or amend the charter], it must be reserved in the grant. The charter of Dartmouth College contains no such reservation.\u2026\u201d The states quickly picked up on Justice Story\u2019s suggestion and wrote into the charter explicit language giving legislatures the authority to modify corporations\u2019 charters at their pleasure. So the potential immutability of corporate charters had little practical chance to develop.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Selection of a State<\/h2>\r\n<div id=\"mayer_1.0-ch43_s05_s02_s01\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Where to Charter<\/h3>\r\nChoosing the particular venue in which to incorporate is the first critical decision to be made after deciding to incorporate. Some corporations, though headquartered in the United States, choose to incorporate offshore to take advantage of lenient taxation laws. Advantages of an offshore corporation include not only lenient tax laws but also a great deal of privacy as well as certain legal protections. For example, the names of the officers and directors can be excluded from documents filed. In the United States, over half of the <em class=\"im_emphasis\">Fortune<\/em> 500 companies hold Delaware charters for reasons related to Delaware\u2019s having a lower tax structure, a favorable business climate, and a legal system\u2014both its statutes and its courts\u2014seen as being up to date, flexible, and often probusiness. Delaware\u2019s success has led other states to compete, and the political realities have caused the Revised Model Business Corporation Act (RMBCA), which was intentionally drafted to balance the interests of all significant groups (management, shareholders, and the public), to be revised from time to time so that it is more permissive from the perspective of management.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s02_s02\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Why Choose Delaware?<\/h3>\r\nDelaware remains the most popular state in which to incorporate for several reasons, including the following: (1) low incorporation fees; (2) only one person is needed to serve the incorporator of the corporation; the RMBC requires three incorporators; (3) no minimum capital requirement; (4) favorable tax climate, including no sales tax; (5) no taxation of shares held by nonresidents; and (5) no corporate income tax for companies doing business outside of Delaware. In addition, Delaware\u2019s Court of Chancery, a court of equity, is renowned as a premier business court with a well-established body of corporate law, thereby affording a business a certain degree of predictability in judicial decision making.\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">The Promoter<\/h2>\r\n<div id=\"mayer_1.0-ch43_s05_s03_s01\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Functions<\/h3>\r\nOnce the state of incorporation has been selected, it is time for <span class=\"im_margin_term\"><span class=\"im_glossterm\">promoters<\/span><\/span>, the midwives of the enterprise, to go to work. Promoters are the individuals who take the steps necessary to form the corporation, and they often will receive stock in exchange for their efforts. They have four principal functions: (1) to seek out or discover business opportunities, (2) to raise capital by persuading investors to sign stock subscriptions, (3) to enter into contracts on behalf of the corporation to be formed, (4) and to prepare the articles of incorporation.\r\n\r\nPromoters have acquired an unsavory reputation as fast talkers who cajole investors out of their money. Though some promoters fit this image, it is vastly overstated. Promotion is difficult work often carried out by the same individuals who will manage the business.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s03_s02\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Contract Liability<\/h3>\r\nPromoters face two major legal problems. First, they face possible liability on contracts made on behalf of the business before it is incorporated. For example, suppose Bob is acting as promoter of the proposed BCT Bookstore, Inc. On September 15, he enters into a contract with Computogram Products to purchase computer equipment for the corporation to be formed. If the incorporation never takes place, or if the corporation is formed but the corporation refuses to accept the contract, Bob remains liable.\r\n\r\nNow assume that the corporation is formed on October 15, and on October 18 it formally accepts all the contracts that Bob signed prior to October 15. Does Bob remain liable? In most states, he does. The ratification theory of agency law will not help in many states that adhere strictly to agency rules, because there was no principal (the corporation) in existence when the contract was made and hence the promoter must remain liable. To avoid this result, Bob should seek an express novation, although in some states, a novation will be implied. The intention of the parties should be stated as precisely as possible in the contract, as the promoters learned in <em class=\"im_emphasis\">RKO-Stanley Warner Theatres, Inc. v. Graziano<\/em>, (see Section 21.7.3 \"Corporate Promoter\").\r\n\r\nThe promoters\u2019 other major legal concern is the duty owed to the corporation. The law is clear that promoters owe a fiduciary duty. For example, a promoter who transfers real estate worth $250,000 to the corporation in exchange for $750,000 worth of stock would be liable for $500,000 for breach of fiduciary duty.\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s04\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Preincorporation Stock Subscriptions<\/h3>\r\nOne of the promoter\u2019s jobs is to obtain <span class=\"im_margin_term\"><span class=\"im_glossterm\">preincorporation stock subscriptions<\/span><\/span> to line up offers by would-be investors to purchase stock in the corporation to be formed. These stock subscriptions are agreements to purchase, at a specified price, a certain number of shares of stock of a corporation, which is to be formed at some point in the future. The contract, however, actually comes into existence <em class=\"im_emphasis\">after<\/em> formation, once the corporation itself accepts the offer to subscribe. Alice agrees with Bob to invest $10,000 in the BCT Bookstore, Inc. for one thousand shares. The agreement is treated as an offer to purchase. The offer is deemed accepted at the moment the bookstore is incorporated.\r\n\r\nThe major problem for the corporation is an attempt by subscribers to revoke their offers. A basic rule of contract law is that offers are revocable before acceptance. Under RMBCA, Section 6.20, however, a subscription for shares is irrevocable for six months unless the subscription agreement itself provides otherwise or unless all the subscribers consent to revocation. In many states that have not adopted the model act, the contract rule applies and the offer is always revocable. Other states use various common-law devices to prevent revocation. For example, the subscription by one investor is held as consideration for the subscription of another, so that a binding contract has been formed.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s05\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Execution and Filing of the Articles of Incorporation<\/h2>\r\nOnce the business details are settled, the promoters, now known as incorporators, must sign and deliver the articles of incorporation to the secretary of state. The articles of incorporation typically include the following: the corporate name; the address of the corporation\u2019s initial registered office; the period of the corporation\u2019s duration (usually perpetual); the company\u2019s purposes; the total number of shares, the classes into which they are divided, and the par value of each; the limitations and rights of each class of shareholders; the authority of the directors to establish preferred or special classes of stock; provisions for preemptive rights; provisions for the regulation of the internal affairs of the corporation, including any provision restricting the transfer of shares; the number of directors constituting the initial board of directors and the names and addresses of initial members; and the name and address of each incorporator. Although compliance with these requirements is largely a matter of filling in the blanks, two points deserve mention.\r\n\r\nFirst, the choice of a name is often critical to the business. Under RMBCA, Section 4.01, the name must include one of the following words (or abbreviations): corporation, company, incorporated, or limited (Corp., Co., Inc., or Ltd.). The name is not allowed to deceive the public about the corporation\u2019s purposes, nor may it be the same as that of any other company incorporated or authorized to do business in the state.\r\n\r\nThese legal requirements are obvious; the business requirements are much harder. If the name is not descriptive of the business or does not anticipate changes in the business, it may have to be changed, and the change can be expensive. For example, when Standard Oil Company of New Jersey changed its name to Exxon in 1972, the estimated cost was over $100 million. (And even with this expenditure, some shareholders grumbled that the new name sounded like a laxative.)\r\n\r\nThe second point to bear in mind about the articles of incorporation is that drafting the clause stating corporate purposes requires special care, because the corporation will be limited to the purposes set forth. In one famous case, the charter of Cornell University placed a limit on the amount of contributions it could receive from any one benefactor. When Jennie McGraw died in 1881, leaving to Cornell the carillon that still plays on the Ithaca, New York, campus to this day, she also bequeathed to the university her residuary estate valued at more than $1 million. This sum was greater than the ceiling placed in Cornell\u2019s charter. After lengthy litigation, the university lost in the US Supreme Court, and the money went to her family.<span id=\"mayer_1.0-fn43_008\" class=\"im_footnote\"><em class=\"im_emphasis\">Cornell University v. Fiske<\/em>, 136 U.S. 152 (1890).<\/span> The dilemma is how to draft a clause general enough to allow the corporation to expand, yet specific enough to prevent it from engaging in undesirable activities.\r\n\r\nSome states require the purpose clauses to be specific, but the usual approach is to permit a broad statement of purposes. Section 3.01 of the RMBCA goes one step further in providing that a corporation automatically \u201chas the purpose of engaging in any lawful business\u201d unless the articles specify a more limited purpose. Once completed, the articles of incorporation are delivered to the secretary of state for filing. The existence of a corporation begins once the articles have been filed.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch43_s05_s06\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Organizational Meeting of Directors<\/h2>\r\nThe first order of business, once the certificate of incorporation is issued, is a meeting of the board of directors named in the articles of incorporation. They must adopt bylaws, elect officers, and transact any other business that may come before the meeting (RMBCA, Section 2.05). Other business would include accepting (ratifying) promoters\u2019 contracts, calling for the payment of stock subscriptions, and adopting bank resolution forms, giving authority to various officers to sign checks drawn on the corporation.\r\n\r\nSection 10.20 of the RMBCA vests in the directors the power to alter, amend, or repeal the bylaws adopted at the initial meeting, subject to repeal or change by the shareholders. The articles of incorporation may reserve the power to modify or repeal exclusively to the shareholders. The bylaws may contain any provisions that do not conflict with the articles of incorporation or the law of the state.\r\n\r\nTypical provisions in the bylaws include fixing the place and time at which annual stockholders\u2019 meetings will be held, fixing a quorum, setting the method of voting, establishing the method of choosing directors, creating committees of directors, setting down the method by which board meetings may be called and the voting procedures to be followed, determining the offices to be filled by the directors and the powers with which each officer shall be vested, fixing the method of declaring dividends, establishing a fiscal year, setting out rules governing issuance and transfer of stock, and establishing the method of amending the bylaws.\r\n\r\nSection 2.07 of the RMBCA provides that the directors may adopt bylaws that will operate during an emergency. An emergency is a situation in which \u201ca quorum of the corporation\u2019s directors cannot readily be assembled because of some catastrophic event.\u201d\r\n<div id=\"mayer_1.0-ch43_s05_s06_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nArticles of incorporation represent a corporate charter\u2014that is, a contract between the corporation and the state. Filing these articles, or \u201cchartering,\u201d is accomplished at the state level. The secretary of state\u2019s final approval gives these articles legal effect. A state cannot change a charter unless it reserves the right when granting the charter.\r\n\r\nIn selecting a state in which to incorporate, a corporation looks for a favorable corporate climate. Delaware remains the state of choice for incorporation, particularly for publicly held companies. Most closely held companies choose to incorporate in their home states.\r\n\r\nFollowing the state selection, the promoter commences his or her functions, which include entering into contracts on behalf of the corporation to be formed (for which he or she can be held liable) and preparing the articles of incorporation.\r\n\r\nThe articles of incorporation must include the corporation\u2019s name and its corporate purpose, which can be broad. Finally, once the certificate of incorporation is issued, the corporation\u2019s board of directors must hold an organizational meeting.\r\n\r\n<\/div>\r\n<div class=\"bcc-box bcc-info\">\r\n<h3>Exercises<\/h3>\r\n<section id=\"self-check-questions\">\r\n<ol>\r\n\t<li>Does the Contracts Clause of the Constitution, which forbids a state from impeding a contract, apply to corporations?<\/li>\r\n\t<li>What are some of the advantages of selecting Delaware as the state of incorporation?<\/li>\r\n\t<li>What are some of the risks that a promoter faces for his or her actions on behalf of the corporation? Can he or she limit these risks?<\/li>\r\n\t<li>What are the dangers of limiting a corporation\u2019s purpose?<\/li>\r\n\t<li>What is the order of business at the first board of directors\u2019 meeting?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\r\n<\/div>","rendered":"<div class=\"bcc-box bcc-highlight\">\n<h3>Learning Objectives<\/h3>\n<p>By the end of this section, you will be able to:<\/p>\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\n<li>Recognize the steps to issue a corporate charter.<\/li>\n<li>Know the states\u2019 rights in modifying a corporate charter.<\/li>\n<li>Discuss factors to consider in selecting a state in which to incorporate.<\/li>\n<li>Explain the functions and liability of a promoter.<\/li>\n<li>Understand the business and legal requirements in executing and filing the articles of incorporation.<\/li>\n<\/ul>\n<\/div>\n<p>As discussed in Section 21.4 &#8220;Classifications of Corporations&#8221;, corporate status offers companies many protections. If the owners of a business decide to incorporate after weighing the pros and cons of incorporation, they need to take the steps explained in this section.<\/p>\n<div id=\"mayer_1.0-ch43_s05_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">The Corporate Charter<\/h2>\n<div id=\"mayer_1.0-ch43_s05_s01_s01\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Function of the Charter<\/h3>\n<p>The ultimate goal of the incorporation process is issuance of a <span class=\"im_margin_term\"><span class=\"im_glossterm\">corporate charter<\/span><\/span>. The term used for the document varies from state to state. Most states call the basic document filed in the appropriate public office the \u201carticles of incorporation\u201d or \u201ccertificate of incorporation,\u201d but there are other variations. There is no legal significance to these differences in terminology.<\/p>\n<p>Chartering is basically a state prerogative. Congress has chartered several enterprises, including national banks (under the National Banking Act), federal savings and loan associations, national farm loan associations, and the like, but virtually all business corporations are chartered at the state level.<\/p>\n<p>Originally a legislative function, chartering is now an administrative function in every state. The secretary of state issues the final indorsement to the articles of incorporation, thus giving them legal effect.<\/p>\n<\/div>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s01_s02\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Charter as a Contract<\/h3>\n<p>The charter is a contract between the state and the corporation. Under the Contracts Clause of Article I of the Constitution, no state can pass any law \u201cimpairing the obligation of contracts.\u201d In 1816, the question arose whether a state could revoke or amend a corporate charter once granted. The corporation in question was Dartmouth College. The New Hampshire legislature sought to turn the venerable private college, operating under an old royal charter, into a public institution by changing the membership of its board. The case wound up in the Supreme Court. Chief Justice John Marshall ruled that the legislature\u2019s attempt was unconstitutional, because to amend a charter is to impair a contract.<span id=\"mayer_1.0-fn43_007\" class=\"im_footnote\"><em class=\"im_emphasis\">Trustees of Dartmouth College v. Woodward<\/em>, 17 U.S. 518 (1819).<\/span><\/p>\n<p>This decision pleased incorporators because it implied that once a corporation had been created, the state could never modify the powers it had been granted. But, in addition, the ruling seemed to favor monopolies. The theory was that by granting a charter to, say, a railroad corporation, the state was barred from creating any further railroad corporations. Why? Because, the lawyers argued, a competitor would cut into the first company\u2019s business, reducing the value of the charter, hence impairing the contract. Justice Joseph Story, concurring in the <em class=\"im_emphasis\">Dartmouth<\/em> case, had already suggested the way out for the states: \u201cIf the legislature mean to claim such an authority [to alter or amend the charter], it must be reserved in the grant. The charter of Dartmouth College contains no such reservation.\u2026\u201d The states quickly picked up on Justice Story\u2019s suggestion and wrote into the charter explicit language giving legislatures the authority to modify corporations\u2019 charters at their pleasure. So the potential immutability of corporate charters had little practical chance to develop.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Selection of a State<\/h2>\n<div id=\"mayer_1.0-ch43_s05_s02_s01\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Where to Charter<\/h3>\n<p>Choosing the particular venue in which to incorporate is the first critical decision to be made after deciding to incorporate. Some corporations, though headquartered in the United States, choose to incorporate offshore to take advantage of lenient taxation laws. Advantages of an offshore corporation include not only lenient tax laws but also a great deal of privacy as well as certain legal protections. For example, the names of the officers and directors can be excluded from documents filed. In the United States, over half of the <em class=\"im_emphasis\">Fortune<\/em> 500 companies hold Delaware charters for reasons related to Delaware\u2019s having a lower tax structure, a favorable business climate, and a legal system\u2014both its statutes and its courts\u2014seen as being up to date, flexible, and often probusiness. Delaware\u2019s success has led other states to compete, and the political realities have caused the Revised Model Business Corporation Act (RMBCA), which was intentionally drafted to balance the interests of all significant groups (management, shareholders, and the public), to be revised from time to time so that it is more permissive from the perspective of management.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s02_s02\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Why Choose Delaware?<\/h3>\n<p>Delaware remains the most popular state in which to incorporate for several reasons, including the following: (1) low incorporation fees; (2) only one person is needed to serve the incorporator of the corporation; the RMBC requires three incorporators; (3) no minimum capital requirement; (4) favorable tax climate, including no sales tax; (5) no taxation of shares held by nonresidents; and (5) no corporate income tax for companies doing business outside of Delaware. In addition, Delaware\u2019s Court of Chancery, a court of equity, is renowned as a premier business court with a well-established body of corporate law, thereby affording a business a certain degree of predictability in judicial decision making.<\/p>\n<\/div>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">The Promoter<\/h2>\n<div id=\"mayer_1.0-ch43_s05_s03_s01\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Functions<\/h3>\n<p>Once the state of incorporation has been selected, it is time for <span class=\"im_margin_term\"><span class=\"im_glossterm\">promoters<\/span><\/span>, the midwives of the enterprise, to go to work. Promoters are the individuals who take the steps necessary to form the corporation, and they often will receive stock in exchange for their efforts. They have four principal functions: (1) to seek out or discover business opportunities, (2) to raise capital by persuading investors to sign stock subscriptions, (3) to enter into contracts on behalf of the corporation to be formed, (4) and to prepare the articles of incorporation.<\/p>\n<p>Promoters have acquired an unsavory reputation as fast talkers who cajole investors out of their money. Though some promoters fit this image, it is vastly overstated. Promotion is difficult work often carried out by the same individuals who will manage the business.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s03_s02\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Contract Liability<\/h3>\n<p>Promoters face two major legal problems. First, they face possible liability on contracts made on behalf of the business before it is incorporated. For example, suppose Bob is acting as promoter of the proposed BCT Bookstore, Inc. On September 15, he enters into a contract with Computogram Products to purchase computer equipment for the corporation to be formed. If the incorporation never takes place, or if the corporation is formed but the corporation refuses to accept the contract, Bob remains liable.<\/p>\n<p>Now assume that the corporation is formed on October 15, and on October 18 it formally accepts all the contracts that Bob signed prior to October 15. Does Bob remain liable? In most states, he does. The ratification theory of agency law will not help in many states that adhere strictly to agency rules, because there was no principal (the corporation) in existence when the contract was made and hence the promoter must remain liable. To avoid this result, Bob should seek an express novation, although in some states, a novation will be implied. The intention of the parties should be stated as precisely as possible in the contract, as the promoters learned in <em class=\"im_emphasis\">RKO-Stanley Warner Theatres, Inc. v. Graziano<\/em>, (see Section 21.7.3 &#8220;Corporate Promoter&#8221;).<\/p>\n<p>The promoters\u2019 other major legal concern is the duty owed to the corporation. The law is clear that promoters owe a fiduciary duty. For example, a promoter who transfers real estate worth $250,000 to the corporation in exchange for $750,000 worth of stock would be liable for $500,000 for breach of fiduciary duty.<\/p>\n<\/div>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s04\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Preincorporation Stock Subscriptions<\/h3>\n<p>One of the promoter\u2019s jobs is to obtain <span class=\"im_margin_term\"><span class=\"im_glossterm\">preincorporation stock subscriptions<\/span><\/span> to line up offers by would-be investors to purchase stock in the corporation to be formed. These stock subscriptions are agreements to purchase, at a specified price, a certain number of shares of stock of a corporation, which is to be formed at some point in the future. The contract, however, actually comes into existence <em class=\"im_emphasis\">after<\/em> formation, once the corporation itself accepts the offer to subscribe. Alice agrees with Bob to invest $10,000 in the BCT Bookstore, Inc. for one thousand shares. The agreement is treated as an offer to purchase. The offer is deemed accepted at the moment the bookstore is incorporated.<\/p>\n<p>The major problem for the corporation is an attempt by subscribers to revoke their offers. A basic rule of contract law is that offers are revocable before acceptance. Under RMBCA, Section 6.20, however, a subscription for shares is irrevocable for six months unless the subscription agreement itself provides otherwise or unless all the subscribers consent to revocation. In many states that have not adopted the model act, the contract rule applies and the offer is always revocable. Other states use various common-law devices to prevent revocation. For example, the subscription by one investor is held as consideration for the subscription of another, so that a binding contract has been formed.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s05\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Execution and Filing of the Articles of Incorporation<\/h2>\n<p>Once the business details are settled, the promoters, now known as incorporators, must sign and deliver the articles of incorporation to the secretary of state. The articles of incorporation typically include the following: the corporate name; the address of the corporation\u2019s initial registered office; the period of the corporation\u2019s duration (usually perpetual); the company\u2019s purposes; the total number of shares, the classes into which they are divided, and the par value of each; the limitations and rights of each class of shareholders; the authority of the directors to establish preferred or special classes of stock; provisions for preemptive rights; provisions for the regulation of the internal affairs of the corporation, including any provision restricting the transfer of shares; the number of directors constituting the initial board of directors and the names and addresses of initial members; and the name and address of each incorporator. Although compliance with these requirements is largely a matter of filling in the blanks, two points deserve mention.<\/p>\n<p>First, the choice of a name is often critical to the business. Under RMBCA, Section 4.01, the name must include one of the following words (or abbreviations): corporation, company, incorporated, or limited (Corp., Co., Inc., or Ltd.). The name is not allowed to deceive the public about the corporation\u2019s purposes, nor may it be the same as that of any other company incorporated or authorized to do business in the state.<\/p>\n<p>These legal requirements are obvious; the business requirements are much harder. If the name is not descriptive of the business or does not anticipate changes in the business, it may have to be changed, and the change can be expensive. For example, when Standard Oil Company of New Jersey changed its name to Exxon in 1972, the estimated cost was over $100 million. (And even with this expenditure, some shareholders grumbled that the new name sounded like a laxative.)<\/p>\n<p>The second point to bear in mind about the articles of incorporation is that drafting the clause stating corporate purposes requires special care, because the corporation will be limited to the purposes set forth. In one famous case, the charter of Cornell University placed a limit on the amount of contributions it could receive from any one benefactor. When Jennie McGraw died in 1881, leaving to Cornell the carillon that still plays on the Ithaca, New York, campus to this day, she also bequeathed to the university her residuary estate valued at more than $1 million. This sum was greater than the ceiling placed in Cornell\u2019s charter. After lengthy litigation, the university lost in the US Supreme Court, and the money went to her family.<span id=\"mayer_1.0-fn43_008\" class=\"im_footnote\"><em class=\"im_emphasis\">Cornell University v. Fiske<\/em>, 136 U.S. 152 (1890).<\/span> The dilemma is how to draft a clause general enough to allow the corporation to expand, yet specific enough to prevent it from engaging in undesirable activities.<\/p>\n<p>Some states require the purpose clauses to be specific, but the usual approach is to permit a broad statement of purposes. Section 3.01 of the RMBCA goes one step further in providing that a corporation automatically \u201chas the purpose of engaging in any lawful business\u201d unless the articles specify a more limited purpose. Once completed, the articles of incorporation are delivered to the secretary of state for filing. The existence of a corporation begins once the articles have been filed.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch43_s05_s06\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Organizational Meeting of Directors<\/h2>\n<p>The first order of business, once the certificate of incorporation is issued, is a meeting of the board of directors named in the articles of incorporation. They must adopt bylaws, elect officers, and transact any other business that may come before the meeting (RMBCA, Section 2.05). Other business would include accepting (ratifying) promoters\u2019 contracts, calling for the payment of stock subscriptions, and adopting bank resolution forms, giving authority to various officers to sign checks drawn on the corporation.<\/p>\n<p>Section 10.20 of the RMBCA vests in the directors the power to alter, amend, or repeal the bylaws adopted at the initial meeting, subject to repeal or change by the shareholders. The articles of incorporation may reserve the power to modify or repeal exclusively to the shareholders. The bylaws may contain any provisions that do not conflict with the articles of incorporation or the law of the state.<\/p>\n<p>Typical provisions in the bylaws include fixing the place and time at which annual stockholders\u2019 meetings will be held, fixing a quorum, setting the method of voting, establishing the method of choosing directors, creating committees of directors, setting down the method by which board meetings may be called and the voting procedures to be followed, determining the offices to be filled by the directors and the powers with which each officer shall be vested, fixing the method of declaring dividends, establishing a fiscal year, setting out rules governing issuance and transfer of stock, and establishing the method of amending the bylaws.<\/p>\n<p>Section 2.07 of the RMBCA provides that the directors may adopt bylaws that will operate during an emergency. An emergency is a situation in which \u201ca quorum of the corporation\u2019s directors cannot readily be assembled because of some catastrophic event.\u201d<\/p>\n<div id=\"mayer_1.0-ch43_s05_s06_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>Articles of incorporation represent a corporate charter\u2014that is, a contract between the corporation and the state. Filing these articles, or \u201cchartering,\u201d is accomplished at the state level. The secretary of state\u2019s final approval gives these articles legal effect. A state cannot change a charter unless it reserves the right when granting the charter.<\/p>\n<p>In selecting a state in which to incorporate, a corporation looks for a favorable corporate climate. Delaware remains the state of choice for incorporation, particularly for publicly held companies. Most closely held companies choose to incorporate in their home states.<\/p>\n<p>Following the state selection, the promoter commences his or her functions, which include entering into contracts on behalf of the corporation to be formed (for which he or she can be held liable) and preparing the articles of incorporation.<\/p>\n<p>The articles of incorporation must include the corporation\u2019s name and its corporate purpose, which can be broad. Finally, once the certificate of incorporation is issued, the corporation\u2019s board of directors must hold an organizational meeting.<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>Does the Contracts Clause of the Constitution, which forbids a state from impeding a contract, apply to corporations?<\/li>\n<li>What are some of the advantages of selecting Delaware as the state of incorporation?<\/li>\n<li>What are some of the risks that a promoter faces for his or her actions on behalf of the corporation? Can he or she limit these risks?<\/li>\n<li>What are the dangers of limiting a corporation\u2019s purpose?<\/li>\n<li>What is the order of business at the first board of directors\u2019 meeting?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-173\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>Business and the Legal Environment. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Anonymous. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\">http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":5,"menu_order":137,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"Business and the Legal Environment\",\"author\":\"Anonymous\",\"organization\":\"Anonymous\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-173","chapter","type-chapter","status-publish","hentry"],"part":763,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/173","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/users\/5"}],"version-history":[{"count":4,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/173\/revisions"}],"predecessor-version":[{"id":992,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/173\/revisions\/992"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/763"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/173\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=173"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=173"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=173"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=173"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}