Corporations
| Author | Jeffrey Lehman, Shirelle Phelps |
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Artificial entities that are created by state statute, and that are treated much like individuals under the law, having legally enforceable rights, the ability to acquire debt and to pay out profits, the ability to hold and transfer property, the ability to enter into contracts, the requirement to pay taxes, and the ability to sue and be sued.
The rights and responsibilities of a corporation are independent and distinct from the people who own or invest in them. A corporation simply provides a way for individuals to run a business and to share in profits and losses.
The concept of a corporate personality traces its roots to ROMAN LAW and found its way to the American colonies through the British. After gaining independence, the states, not the federal government, assumed authority over corporations.
Although corporations initially served only limited purposes, the Industrial Revolution spurred their development. The corporation became the ideal way to run a large enterprise, combining centralized control and direction with moderate investments by a potentially unlimited number of people.
The corporation today remains the most common form of business organization because, theoretically, a corporation can exist forever and because a corporation, not its owners or investors, is liable for its contracts. But these benefits do not come free. A corporation must follow many formalities, is subject to publicity, and is governed by state and federal regulations.
Many states have drafted their statutes governing corporations based upon the Model Business Corporation Act. This document, prepared by the American Bar Association Section of Business Law, Committee on Corporate Laws, and approved by the AMERICAN LAW INSTITUTE, provides a framework for all aspects of corporate governance as well as other aspects of corporations. Like other MODEL ACTS, the Model Business Corporation Act is not necessarily designed to be adopted wholesale by the various states, but rather is designed to provide guidance to states when they adopt their own acts.
Corporations can be private, nonprofit, municipal, or quasi-public. Private corporations are in business to make money, whereas nonprofit corporations generally are designed to benefit the general public. Municipal corporations are typically cities and towns that help the state to function at the local level. Quasi-public corporations would be considered private, but their business serves the public's needs, such as by offering utilities or telephone service.
There are two types of private corporations. One is the public corporation, which has a large number of investors, called shareholders. Corporations that trade their shares, or investment stakes, on SECURITIES exchanges or that regularly publish share prices are typical publicly held corporations.
The other type of private corporation is the closely held corporation. Closely held corporations have relatively few shareholders (usually 15 to 35 or fewer), often all in a single family; little or no outside market exists for sale of the shares; all or most of the shareholders help run the business; and the sale or transfer of shares is restricted. The vast majority of corporations are closely held.
Many corporations get their start through the efforts of a person called a promoter, who goes about developing and organizing a business venture. A promoter's efforts typically involve arranging the needed capital, or financing, using loans, money from investors, or the promoter's own money; assembling the people and assets (such as land, buildings, and leases) necessary to run the corporation; and fulfilling the legal requirements for forming the corporation.
A corporation cannot be automatically liable for obligations that a promoter incurred on its behalf. Technically, a corporation does not exist during a promoter's pre-incorporation activities. A promoter therefore cannot serve as a legal agent, who could bind a corporation to a contract.
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After formation, a corporation must somehow assent before it can be bound by an obligation that a promoter has made on its behalf. Usually, if a corporation gets the benefits of a promoter's contract, it will be treated as though it has assented to, and accepted, the contract.
The first question facing incorporators (those forming a corporation) is where to incorporate. The answer often depends on the type of corporation. Theoretically, both closely held and large public corporations may incorporate in any state. Small businesses operating in a single state usually incorporate in that state. Most large corporations select Delaware as their state of incorporation because of its sophistication in dealing with corporation law.
Incorporators then must follow the mechanics that are set forth in the state's statutes. Corporation statutes vary from state to state, but most require basically the same essentials in forming a corporation. Every statute requires incorporators to file a document, usually called the articles of incorporation, and pay a filing fee to the secretary of state's office, which reviews the filing. If the filing receives approval, the corporation is considered to have started existing on the date of the first filing.
The articles of incorporation typically must contain (1) the name of the corporation, which often must include an element like Company, Corporation, Incorporated, or Limited," and may not resemble too closely the names of other corporations in the state; (2) the length of time the corporation will exist, which can be perpetual or renewable; (3) the corporation's purpose, usually described as "any lawful business purpose"; (4) the number and types of shares that the corporation may issue and the rights and preferences of those shares; (5) the address of the corporation's registered office, which need not be the corporation's business office, and the registered agent at that office who can accept legal SERVICE OF PROCESS; (6) the number of directors and the names and addresses of the first directors; and (7) each incorporator's name and address.
Delaware may be among the United States' smallest states, but it is the biggest when it comes to corporations: more than a third of all corporations listed by the New York Stock Exchange are incorporated in Delaware.
Delaware's allure is explained through a combination of history and law. Although today the state's corporations law is not necessarily less restrictive and less rigid than other states' corporation laws, Delaware could boast more corporation friendly statutes before model corporation laws came into vogue. As a result, corporate lawyers nationwide are more familiar with Delaware's law, and its statutes and case law provide certainty and easy access.
Delaware, more than any other state, relies on franchise tax revenues; thus, Delaware, more than any other state, is committed to remaining a responsive and desirable incorporation site. In addition, Delaware offers a level of certainty and stability: the state's constitution requires a two-thirds vote of both legislative houses to change its corporations statutes.
Delaware also has a specialized court that is staffed by lawyers from the corporate bar, and its highest court has similar expertise. Lawyers in the state continually work to keep Delaware's corporate law current, effective, and flexible. All combine to make Delaware the first state for incorporation.
A corporation's bylaws usually contain the rules for the actual running of the corporation. Bylaws normally are not filed with the SECRETARY OF STATE and are easier to amend than are the articles of incorporation. The bylaws should be complete enough so that corporate officers can rely on them to manage the corporation's affairs. The bylaws regulate the conduct of directors,
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Proctor and Gamble president and CEO A.G. Lafley addresses shareholders at the company's annual meeting in 2002. A corporation's officers are responsible for running day-to-day business affairs and carrying out policies established by the directors.
officers, and shareholders and set forth rules governing internal affairs. They can include definitions of management's duties, as well as times, locations, and voting procedures for meetings that affect the corporation.
The primary players in a corporation are the shareholders, directors, and officers. Shareholders are the investors in, and owners of, a corporation. They elect, and sometimes remove, the directors, and occasionally they must vote on specific corporate transactions or operations. The board of directors is the top governing body. Directors establish corporate policy and hire officers, to whom they usually delegate their obligations to administer and manage the corporation's affairs. Officers run the day-to-day business affairs and carry out the policies the directors establish.
Shareholders Shareholders' financial interests in the corporation is determined by the percentage of the total outstanding shares of stock that they own. Along with their financial stakes, shareholders generally receive a number of rights, all designed to protect their investments. Foremost among these rights is the power to vote. Shareholders vote to elect and remove directors, to change or add to the bylaws, to ratify (i.e., approve after the fact) directors'...
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