{"id":183,"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=183"},"modified":"2015-04-16T18:21:48","modified_gmt":"2015-04-16T18:21:48","slug":"22-6-the-winds-of-change","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/22-6-the-winds-of-change\/","title":{"raw":"The Winds of Change","rendered":"The Winds of Change"},"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>Know the modern changes to corporate finance terminology and specific requirements imposed by states.<\/li>\r\n\t<li>Compare the application of the Uniform Commercial Code to corporate finance with the applicability of the 1933 and 1934 federal securities acts.<\/li>\r\n<\/ul>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch44_s06_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Changes in the Revised Model Business Corporation Act<\/h2>\r\nPerhaps the most dramatic innovations incorporated into the Revised Model Business Corporation Act (RMBCA) are the financial provisions. The revisions recommend eliminating concepts such as par value stock, no-par stock, stated capital, capital surplus, earned surplus, and treasury shares. It was felt that these concepts\u2014notably par value and stated capital\u2014no longer serve their original purpose of protecting creditors.\r\n\r\nA key definition under the revisions is that of <em class=\"im_emphasis\">distributions<\/em>\u2014that is, any transfer of money or property to the shareholders. In order to make distributions, a corporation must meet the traditional insolvency test and balance sheet tests. Under the balance sheet test, corporate assets must be greater than or equal to liabilities and liquidation preferences on senior equity. The RMBCA also provides that promissory notes and contracts for future services may be used in payment for shares.\r\n\r\nIt is important to note that the RMBCA is advisory. Not every state has abandoned <em class=\"im_emphasis\">par value<\/em> or the other financial terms. For example, Delaware is quite liberal with its requirements:\r\n\r\nEvery corporation may issue 1 or more classes of stock or 1 or more series of stock within any class thereof, any or all of which classes may be of stock with par value or stock without par value and which classes or series may have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the certificate of incorporation or of any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to authority expressly vested in it by the provisions of its certificate of incorporation.<span id=\"mayer_1.0-fn44_006\" class=\"im_footnote\">Del. Code Ann. tit. 8, \u00a7 151 (2011).<\/span>\r\n\r\nTherefore, although the modern trend is to move away from <em class=\"im_emphasis\">par value<\/em> as well as some other previously discussed terms\u2014<em class=\"im_emphasis\">and despite the RMBCA\u2019s abandonment of these concepts<\/em>\u2014they still, in large measure, persist.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch44_s06_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Introduction to Article 8 of the Uniform Commercial Code<\/h2>\r\nPartial ownership of a corporation would be an awkward investment if there were no ready means of transfer. The availability of paper certificates as tangible evidence of the ownership of equity securities solves the problem of what to transfer, but since a corporation must maintain records of its owners, a set of rules is necessary to spell out how transfers are to be made. That set of rules is Article 8 of the Uniform Commercial Code (UCC). Article 8 governs certificated securities, uncertificated securities, registration requirements, transfer, purchase, and other specifics of securities. Article 8 can be viewed at <a class=\"im_link\" href=\"http:\/\/www.law.cornell.edu\/ucc\/8\/overview.html\" target=\"_blank\">http:\/\/www.law.cornell.edu\/ucc\/8\/overview.html<\/a>.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch44_s06_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">The UCC and the 1933 and 1934 Securities Acts<\/h2>\r\nThe Securities Act of 1933 requires the registration of securities that are sold or offered to be sold using interstate commerce. The Securities Exchange Act of 1934 governs the secondary trading of securities, such as stock market sales. The UCC also governs securities, through Articles 8 and 9. The key difference is that the 1933 and 1934 acts are federal law, while the UCC operates at the state level. The UCC was established to standardize state laws governing sales and commercial transactions. There are some substantial differences, however, between the two acts and the UCC. Without going into exhaustive detail, it is important to note a few of them. For one, the definition of <em class=\"im_emphasis\">security<\/em> in the UCC is different from the definition in the 1933 and 1934 acts. Thus a security may be governed by the securities acts but not by the UCC. The definition of a private placement of securities also differs between the UCC and the securities acts. Other differences exist.<span id=\"mayer_1.0-fn44_007\" class=\"im_footnote\">See Lynn Soukup, \u201cSecurities Law and the UCC: When Godzilla Meets Bambi,\u201d <em class=\"im_emphasis\">Uniform Commercial Code Law Journal<\/em> 38, no. 1 (Summer 2005): 3\u201328.<\/span> The UCC, as well as state-specific laws, and the federal securities laws should all be considered in financial transactions.\r\n<div id=\"mayer_1.0-ch44_s06_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nThe RMBCA advises doing away with financial concepts such as stock par value. Despite this suggestion, these concepts persist. Corporate finance is regulated through a variety of mechanisms, most notably Articles 8 and 9 of the Uniform Commercial Code and the 1933 and 1934 securities acts.\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>What suggested changes are made by the RMBCA?<\/li>\r\n\t<li>What does UCC Article 8 govern?<\/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>\r\n&nbsp;","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>Know the modern changes to corporate finance terminology and specific requirements imposed by states.<\/li>\n<li>Compare the application of the Uniform Commercial Code to corporate finance with the applicability of the 1933 and 1934 federal securities acts.<\/li>\n<\/ul>\n<\/div>\n<div id=\"mayer_1.0-ch44_s06_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Changes in the Revised Model Business Corporation Act<\/h2>\n<p>Perhaps the most dramatic innovations incorporated into the Revised Model Business Corporation Act (RMBCA) are the financial provisions. The revisions recommend eliminating concepts such as par value stock, no-par stock, stated capital, capital surplus, earned surplus, and treasury shares. It was felt that these concepts\u2014notably par value and stated capital\u2014no longer serve their original purpose of protecting creditors.<\/p>\n<p>A key definition under the revisions is that of <em class=\"im_emphasis\">distributions<\/em>\u2014that is, any transfer of money or property to the shareholders. In order to make distributions, a corporation must meet the traditional insolvency test and balance sheet tests. Under the balance sheet test, corporate assets must be greater than or equal to liabilities and liquidation preferences on senior equity. The RMBCA also provides that promissory notes and contracts for future services may be used in payment for shares.<\/p>\n<p>It is important to note that the RMBCA is advisory. Not every state has abandoned <em class=\"im_emphasis\">par value<\/em> or the other financial terms. For example, Delaware is quite liberal with its requirements:<\/p>\n<p>Every corporation may issue 1 or more classes of stock or 1 or more series of stock within any class thereof, any or all of which classes may be of stock with par value or stock without par value and which classes or series may have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the certificate of incorporation or of any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to authority expressly vested in it by the provisions of its certificate of incorporation.<span id=\"mayer_1.0-fn44_006\" class=\"im_footnote\">Del. Code Ann. tit. 8, \u00a7 151 (2011).<\/span><\/p>\n<p>Therefore, although the modern trend is to move away from <em class=\"im_emphasis\">par value<\/em> as well as some other previously discussed terms\u2014<em class=\"im_emphasis\">and despite the RMBCA\u2019s abandonment of these concepts<\/em>\u2014they still, in large measure, persist.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch44_s06_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Introduction to Article 8 of the Uniform Commercial Code<\/h2>\n<p>Partial ownership of a corporation would be an awkward investment if there were no ready means of transfer. The availability of paper certificates as tangible evidence of the ownership of equity securities solves the problem of what to transfer, but since a corporation must maintain records of its owners, a set of rules is necessary to spell out how transfers are to be made. That set of rules is Article 8 of the Uniform Commercial Code (UCC). Article 8 governs certificated securities, uncertificated securities, registration requirements, transfer, purchase, and other specifics of securities. Article 8 can be viewed at <a class=\"im_link\" href=\"http:\/\/www.law.cornell.edu\/ucc\/8\/overview.html\" target=\"_blank\">http:\/\/www.law.cornell.edu\/ucc\/8\/overview.html<\/a>.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch44_s06_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">The UCC and the 1933 and 1934 Securities Acts<\/h2>\n<p>The Securities Act of 1933 requires the registration of securities that are sold or offered to be sold using interstate commerce. The Securities Exchange Act of 1934 governs the secondary trading of securities, such as stock market sales. The UCC also governs securities, through Articles 8 and 9. The key difference is that the 1933 and 1934 acts are federal law, while the UCC operates at the state level. The UCC was established to standardize state laws governing sales and commercial transactions. There are some substantial differences, however, between the two acts and the UCC. Without going into exhaustive detail, it is important to note a few of them. For one, the definition of <em class=\"im_emphasis\">security<\/em> in the UCC is different from the definition in the 1933 and 1934 acts. Thus a security may be governed by the securities acts but not by the UCC. The definition of a private placement of securities also differs between the UCC and the securities acts. Other differences exist.<span id=\"mayer_1.0-fn44_007\" class=\"im_footnote\">See Lynn Soukup, \u201cSecurities Law and the UCC: When Godzilla Meets Bambi,\u201d <em class=\"im_emphasis\">Uniform Commercial Code Law Journal<\/em> 38, no. 1 (Summer 2005): 3\u201328.<\/span> The UCC, as well as state-specific laws, and the federal securities laws should all be considered in financial transactions.<\/p>\n<div id=\"mayer_1.0-ch44_s06_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>The RMBCA advises doing away with financial concepts such as stock par value. Despite this suggestion, these concepts persist. Corporate finance is regulated through a variety of mechanisms, most notably Articles 8 and 9 of the Uniform Commercial Code and the 1933 and 1934 securities acts.<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>What suggested changes are made by the RMBCA?<\/li>\n<li>What does UCC Article 8 govern?<\/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<p>&nbsp;<\/p>\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-183\">\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":7,"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-183","chapter","type-chapter","status-publish","hentry"],"part":762,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/183","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\/183\/revisions"}],"predecessor-version":[{"id":974,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/183\/revisions\/974"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/762"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/183\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=183"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=183"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=183"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=183"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}