Introduction toCorporate Governance and the Sarbanes-Oxley Act

Chapter Nine

Introduction toCorporate Governance and

the Sarbanes-Oxley Act

Business Organizations for ParalegalsReed and Cheeseman

© 2012 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights Reserved.2 29 - 236 - 2

Chapter Nine – Objectives

1. Describe the functions of shareholders, directors, and officers in managing the affairs of a corporation.

2. Describe a director’s and an officer’s duty of care and the business judgment rule.

3. Describe a director’s and an officer’s duty of loyalty and how this duty is breached.

4. Define piercing the corporate veil, or alter ego doctrine.

5. Describe how the Sarbanes-Oxley Act affects corporate governance.



Rights of Shareholders

A corporation’s shareholders own the corporation. Shareholders are not agents of the corporation. They cannot bind the corporation to contracts. Shareholders have the right to vote on matters such as:

the election of directors, and the approval of fundamental changes in the

corporation.



Annual Shareholders’ Meeting

Meeting of the shareholders that must be held annually by the corporation to elect directors and vote on other matters. Shareholders do not have to attend the

shareholders’ meeting to vote. Shareholders may vote by proxy.

Special shareholders’ meeting called by board, holders of at least ten percent of stock, others authorized. Emergency or important issues



Proxies

Shareholders may vote by proxy Appoint someone as their agent to vote Written document is proxy card Valid for 11 months



Voting Requirements

At least one class of shares of the corporation must have voting rights.

Shareholders of record as a set date allowed to vote Record date not more than 70 days before the

shareholders’ meeting

Corporation must prepare and maintain shareholders’ list Must be available for inspection



Quorum

The required number of shares that must be represented in person or by proxy to hold a shareholders’ meeting.

Once quorum is present, withdrawal of shares has no effect.

The affirmative vote of the majority of the voting shares represented at a shareholders’ meeting constitutes an act of the shareholders for actions other than for the election of directors.



Voting

Straight Voting- Each shareholder votes the number of shares he or she owns on candidates for each of the positions open.

Cumulative Voting- A shareholder can accumulate all of his or her votes and vote them all for one candidate of split them among several candidates.

Supramajority Voting Requirement- A requirement that a greater than majority of shares constitutes a quorum of the vote of the shareholders.



Voting Agreements

Sometimes share-holders agree in advance as to how their shares will be voted. Voting Trusts Shareholder Voting Agreements



Right to Receive Information

Corporation must furnish shareholders with annual financial statement.

Shareholders have absolute right to inspect shareholders’ list, articles, bylaws, minutes of shareholders’ meetings for past three years

Must demonstrate proper purpose to inspect accounting and tax records, minutes from board and committee meetings, shareholders’ meetings beyond three years.



Dividends

Distribution of profits of the corporation to shareholders.

Paid at discretion of board.

Shareholders on record date will receive dividends.

May use additional shares of stock as a dividend. Not a distribution of corporate assets



Derivative Lawsuits Shareholders may bring derivative lawsuits against

the corporation to enforce their rights. Corporation is harmed by someone, and directors fail to

bring an action against them. Shareholder must have owned shares when action

occurred. Shareholder must fairly and adequately represent

interests of corporations. Must make written demand upon directors, and is either

rejected or 90 days have expired since demand made. If successful, award goes to treasury, but plaintiff-

shareholder may recover reasonable expenses and attorneys’ fees.



Piercing the Corporate Veil

A doctrine that says if a shareholder dominates a corporation and uses it for improper purposes, a court of equity can: Disregard the corporate entity, and Hold the shareholder personally liable for the

corporation’s debts and obligations



Board of Directors

Elected by the shareholders. Responsible for formulating the policy decisions

affecting the corporation. The board may initiate certain actions that require

shareholders’ approval by passing resolution. Have an absolute right of inspection.



Selecting Directors

Inside Director A member of the board of directors who

is also an officer of the corporation

Outside Director A member of the board of directors who

is not an officer of the corporation



Term of Office

The term of a director’s office expires at the next annual shareholders’ meeting following his or her election.

Terms may be staggered to two or three years. Specifics must be in articles.



Meetings of the Board of Directors

The directors can only act as a board. They cannot act individually on the corporation’s

behalf. Every director has the right to participate in any

meeting of the board of directors. Each director has one vote. Directors cannot vote by proxy. Regular and special meetings are established by

bylaws.



Quorum and Voting Requirement

Simple majority usually constitutes quorum.

Articles and bylaws may increase this number.

If quorum is present, simple majority of quorum approves or disapproves actions.



Committees of the Board of Directors

Boards can create committees to handle specific duties.

Members with special expertise appointed to committees

Cannot delegate dividend declaration, initiate actions that require shareholders’ approval, appoint members to fill vacancies, amend the bylaws, approve plan of merger, or authorize issuance of shares.



Preemptive Rights

Rights that give existing shareholders the option of subscribing to new shares being issued in proportion to their current ownership interests.

Prevents dilution of shares.



Transfer of Shares

Subject to certain restrictions, shareholders have the right to transfer their shares.

Shareholders may enter into agreements with one another to prevent unwanted persons from becoming owners of the corporation. Right of First Refusal Buy-and-Sell Agreement



Corporate Officers

Board of directors appoint officers. Directors delegate management authority to

officers. Most corporations have president, vice

president, secretary, and treasurer. Officer can be removed by board.



Agency Authority of Officers

Officers and agents of the corporation have such authority as may be provided in the bylaws or as determined by resolution of the board of directors.

Corporation may ratify unauthorized act. Officers liable for unauthorized actions.



Liability of Corporate Directors and Officers

Duty of ObedienceDuty of Obedience

Duty of CareDuty of Care

Duty of LoyaltyDuty of Loyalty



Liability of Directors and Officers

Fiduciary Duties- The duties of obedience, care, and loyalty owed by directors and officers to their corporation and its shareholders. Duty of Obedience Duty of Care Duty of Loyalty



Duty of Obedience Duty to act within the authority conferred upon them

by: The state corporation statute The articles of incorporation The corporate bylaws The resolutions adopted by the board of directors

Directors and officers who either intentionally or negligently act outside their authority are personally liable for any resultant damages caused to the corporation or its shareholders.



Duty of Care

A duty that corporate directors and officers have to use care and diligence when acting on behalf of the corporation.

A director or officer who breaches this duty of care is personally liable to the corporation and its shareholders for any damages caused by this breach.



Duty of Care(continued)

This duty is discharged if an officer or director acts:

1. In good faith.

2. With the care that an ordinary prudent person in a like position would use under similar circumstances.

3. In a manner he or she reasonably believes to be in the best interests of the corporation.



Duty of Care(continued)

Violations of this duty of care include acts of negligence and mismanagement, including failure to: Make a reasonable investigation of a corporate

matter. Attend board meetings on a regular basis. Properly supervise a subordinate who causes a loss

to the corporation. Keep adequately informed about corporate matters. Take other actions necessary to discharge duties.



Business Judgment Rule

Determination of whether duty was met measured at time decision made. Hindsight not applied

Not liable for honest mistakes of judgment.



Reliance on Others

Corporate directors and officers may rely on information and reports prepared by competent and reliable officers and employees, lawyers, accountants, other professionals, and committees of the board of directors.

A director is not liable if such information is false, misleading, or otherwise unreliable unless he or she has knowledge that would cause such reliance to be unwarranted.



Duty of Loyalty

A duty that directors and officers have: Not to act adversely to the interests of the

corporation, and To subordinate their personal interests to those of

the corporation and its shareholders Breach of the duty of loyalty usually occurs because

of intentional conduct.



Duty of Loyalty(continued)

Breaches of the duty of loyalty include unauthorized:

1. Self-dealing with the corporation

2. Usurping of a corporate opportunity

3. Competing with the corporation

4. Making a secret profit that belongs to the corporation



Criminal Liability

Directors, officers, and agents are personally liable for the crimes that they commit while acting on behalf of the corporation. Sanctions include fines and imprisonment for

individuals Fines and loss of privileges for corporation



Chapter Nine – Recap

1. Describe the functions of shareholders, directors, and officers in managing the affairs of a corporation.

2. Describe a director’s and an officer’s duty of care and the business judgment rule.

3. Describe a director’s and an officer’s duty of loyalty and how this duty is breached.

4. Define piercing the corporate veil, or alter ego doctrine.

5. Describe how the Sarbanes-Oxley Act affects corporate governance.

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