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9780827375680

The Law of Corporations, Partnerships, and Sole Proprietorships

by
  • ISBN13:

    9780827375680

  • ISBN10:

    0827375689

  • Edition: 2nd
  • Format: Hardcover
  • Copyright: 1996-10-01
  • Publisher: Cengage Learning
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Summary

From the mom-and-pop variety store to the multinational corporation, the world of business is the very bedrock of our legal system. What are the differences among the various forms of business entities? What are the taxation benefits of a sole proprietorship? How are profits distributed in a partnership? What are the rights and obligations of a shareholder? The answers to these questions and more are found in this complete and concise introduction to the law of business organizations.

Table of Contents

Preface xxiii
About the Author xxv
Table of Cases
xxvii
Sole Proprietorships
1(15)
Introduction
1(1)
Sole Proprietorship Defined
1(1)
Sole Proprietorships in the United States
2(1)
Advantages of Doing Business As a Sole Proprietor
2(4)
Full Management Authority
2(1)
Minimal Formalities and Regulatory and Reporting Requirements
3(1)
Low Cost of Organization
4(1)
Income Tax Benefits
4(2)
Disadvantages of Doing Business As a Sole Proprietor
6(2)
Unlimited Liability
6(1)
Lack of Business Continuity
7(1)
No Diversity in Management
7(1)
Difficulty in Transferring Proprietary Interest
7(1)
Limited Ability to Raise Capital
8(1)
Tax Disadvantages
8(1)
Formation and Operation of the Sole Proprietorship
8(4)
Using an Assumed Name, Trade Name, or Fictitious Name
9(1)
Hiring Employees and Using Tax Identification Numbers
10(1)
Sales Tax Permits
11(1)
Licensing
12(1)
The Role of the Legal Assistant in Sole Proprietorship Matters
12(1)
Resources
13(3)
United States Small Business Administration
13(1)
State and Local Government Offices
13(1)
State Statutes
13(1)
Secretaries of State
14(2)
Partnerships
16(56)
Introduction
17(1)
An Introduction to Partnerships
17(5)
Partnership Defined
18(1)
Partnerships in the United States
19(2)
Law Governing Partnerships
21(1)
The Partnership As a Separate Entity
21(1)
Partners' Rights and Responsibilities
22(13)
Partners' Rights in Partnership Assets
23(1)
Partners' Rights in Dealing with Each Other
23(2)
Partners' Duties in Dealing with Each Other
25(1)
Partners' Duties to Contribute to Partnership Losses
26(1)
Partners' Duties to Work for Partnership Without Remuneration
26(1)
Partners' Duties to Submit to a Vote of the Majority of the Partners
26(1)
Partners' Fiduciary Duties to the Partnership and Other Partners
26(1)
Partners As Agents
27(1)
Liability of Partners
28(1)
Relationship Between Partners and Others
28(4)
Statement of Partnership Authority
32(1)
Statement of Denial
33(1)
Partnership Powers
34(1)
Partnership Property
34(1)
Advantages of Doing Business As a General Partnership
35(2)
Participation and Flexibility in Management
35(1)
Minimal Formalities and Regulatory and Reporting Requirements
35(1)
Low Cost of Organization
36(1)
Income Tax Benefits
37(1)
Diversified Capital Resources
37(1)
Disadvantages of Doing Business As a Partnership
37(3)
Unlimited Liability
38(1)
Loosely Structured Management
38(1)
Lack of Business Continuity
39(1)
Difficulty in Transferring Proprietary Interest
39(1)
Limited Ability to Raise Capital
39(1)
Legal and Organizational Expenses
40(1)
Tax Disadvantages
40(1)
Organization and Management of a General Partnership
40(15)
Management and Control
41(1)
Oral Partnership Agreements
42(1)
Partnership Agreements
42(13)
Financial Structure of a Partnership
55(2)
Partnership Capital
55(1)
Profits and Losses
56(1)
Dissolution, Dissociation, Winding Up, and Termination of the Partnership
57(5)
Dissociation, Dissolution, and Winding Up
57(1)
Events Causing Partner's Dissociation
58(1)
Effect of Partner's Dissociation
59(1)
Statement of Dissociation
59(1)
Events Causing Dissolution and Winding Up of Partnership Business
60(1)
Dissolution Agreement
61(1)
Notice to Third Parties
61(1)
Winding Up
61(1)
Distribution of Assets
62(1)
Other Types of Partnerships and Similar Organizations
62(1)
Partnership Association or Limited Partnership Association
63(1)
Joint Ventures
63(1)
Mining Partnerships
63(1)
The Role of the Legal Assistant in Partnership Matters
63(2)
Resources
65(7)
State Statutes
65(3)
Legal Form Books
68(1)
Secretary of State or Other Appropriate State Authority
68(1)
State and Local Government Offices
68(4)
Limited Partnerships
72(42)
Introduction
73(1)
An Introduction to Limited Partnerships
73(3)
Limited Partnership Defined
74(1)
Limited Partnerships in the United States
74(2)
Law Governing Limited Partnerships
76(1)
The Limited Partnership As a Separate Entity
76(1)
Partners' Rights and Responsibilities
76(5)
General Partners' Rights and Responsibilities
77(1)
Limited Partners' Rights and Responsibilities
77(4)
The Relationship Between General Partners and Limited Partners
81(1)
Advantages of Doing Business As a Limited Partnership
81(2)
Limited Liability for Limited Partners
81(1)
Income Tax Benefits
82(1)
Transferability of Partnership Interest
82(1)
Business Continuity
82(1)
Diversified Capital Resources
83(1)
Disadvantages of Doing Business As a Limited Partnership
83(2)
Unlimited Liability
83(1)
Prohibition on Control of Business
84(1)
Formalities and Regulatory and Reporting Requirements
84(1)
Legal and Organizational Expenses
84(1)
Organization and Management of a Limited Partnership
85(12)
Management and Control
86(1)
Limited Partnership Certificate
86(3)
Execution and Filing of the Limited Partnership Certificate
89(1)
Amendment to Limited Partnership Certificate
89(1)
Limited Partnership Agreement
89(8)
Changes in Partnership
97(4)
Admission of New General Partners
99(1)
Admission of New Limited Partners
99(1)
Withdrawal of General Partners
100(1)
Withdrawal of Limited Partners
100(1)
Financial Structure of a Limited Partnership
101(1)
Partnership Capital Contributions
101(1)
Withdrawal of Contributions
102(1)
Profits and Losses
102(1)
Derivative Actions
102(1)
Dissolution, Winding Up, and Termination of the Limited Partnership
103(4)
Dissolution Versus Winding Up
103(1)
Causes of Dissolution
103(2)
Cancellation of Certificate of Limited Partnership
105(1)
Winding Up
105(1)
Settlement and Distribution of Assets
106(1)
The Role of the Legal Assistant in Limited Partnership Matters
107(1)
Resources
108(6)
State Statutes
108(1)
Legal Form Books
109(1)
Secretary of State or Other Appropriate State Authority
110(1)
Government Tax Offices
110(4)
Limited Liability Companies
114(44)
An Introduction to Limited Liability Companies
115(4)
Limited Liability Company Defined
115(1)
Limited Liability Company Characteristics
116(3)
Limited Liability Companies in the United States
119(1)
Law Governing Limited Liability Companies
120(4)
State Law and the Uniform Limited Liability Company Act
120(2)
IRS Rulings
122(1)
Securities Laws
123(1)
Limited Liability Company Rights and Powers
124(1)
Members' Rights and Responsibilities
125(2)
Members As Agents
125(1)
Transferability of Interest
126(1)
Members' Statutory Rights
126(1)
Rights Granted by the Operating Agreement
126(1)
Organization and Management of a Limited Liability Company
127(9)
Organizers of the Limited Liability Company
127(1)
Articles of Organization
127(4)
Management and Control of the Limited Liability Company
131(1)
Matters Requiring Consent of All Members
132(2)
The Operating Agreement
134(1)
Annual Reporting Requirements
135(1)
Financial Structure of a Limited Liability Company
136(1)
Member Contributions
136(1)
Member Reimbursement
136(1)
Distributions to Members
136(1)
Dissolution of the Limited Liability Company
137(3)
Member's Dissociation
137(1)
Dissolution of the Limited Liability Company
138(1)
Winding Up the Limited Liability Company
139(1)
Distribution of Assets
139(1)
Articles of Termination
140(1)
Advantages of Doing Business As a Limited Liability Company
140(2)
Limited Liability for All Owners
141(1)
Unrestrictive Ownership
141(1)
Ability to Raise Capital for the Business
141(1)
Beneficial Tax Treatment
141(1)
Flexibility of Management
142(1)
Disadvantages of Doing Business As a Limited Liability Company
142(3)
Limited Transferability of Ownership
142(1)
No Business Continuity
143(1)
Possibility of Piercing the Limited Liability Company Veil
143(1)
Income Tax Uncertainty
143(2)
Lack of Uniformity in State Laws
145(1)
Transacting Business As a Foreign Limited Liability Company
145(4)
Transacting Business As a Foreign Limited Liability Company
146(2)
Application for a Certificate of Authority
148(1)
Name Registration
148(1)
Other Types of Unincorporated Limited Liability Entities
149(1)
Professional Limited Liability Companies
150(1)
Limited Liability Partnerships
150(1)
The Role of the Legal Assistant
150(5)
Drafting Limited Liability Documentation
152(2)
Limited Liability Company Research
154(1)
Resources
155(3)
State Statutes
155(1)
State Authorities
155(1)
Internal Revenue Code
155(1)
Form Books and Treatises
156(2)
Corporations
158(26)
Introduction
159(1)
An Introduction to Corporations
159(6)
Corporation Defined
159(1)
The Corporation As a Separate Legal Entity
160(1)
Piercing the Corporate Veil
160(2)
Law Governing Corporations
162(3)
Corporations in the United States
165(1)
Corporate Rights and Powers
166(1)
Advantages of Doing Business As a Corporation
167(4)
Limited Liability
168(1)
Beneficial Tax Treatment
168(1)
Corporate Expenses
168(1)
Employee Benefit Plans
169(1)
Choice of Tax Year
169(1)
Business Continuity
169(1)
Ability to Raise Capital
169(1)
Centralized Management
170(1)
Transferability of Ownership
170(1)
Disadvantages of Doing Business As a Corporation
171(2)
Corporate Formalities and Reporting Requirements
171(1)
Taxation
172(1)
Double Taxation
172(1)
Taxes Peculiar to Corporations
172(1)
Types and Classifications of Corporations
173(7)
Business Corporations
173(1)
Professional Corporations
173(1)
Nonprofit Corporations
174(1)
S Corporations
175(2)
Statutory Close Corporations
177(2)
Parents and Subsidiaries
179(1)
The Role of the Legal Assistant in Corporate Law Matters
180(1)
Resources
180(4)
State Statutes
180(1)
Federal Statutes
181(1)
Legal Encyclopedias
181(1)
Forms and Form Books
181(1)
Secretary of State or Other State Corporation Agency
182(2)
Formation of the Corporation
184(52)
Introduction
185(1)
Preincorporation Matters
185(11)
Deciding on the Corporate Structure
186(1)
Choosing a Domicile
186(2)
Promoters
188(2)
Preincorporation Agreements
190(2)
Stock Subscriptions
192(1)
Gathering Client Information to Incorporate
193(3)
Incorporators
196(1)
Articles of Incorporation
197(10)
Mandatory Provisions
197(4)
Optional Provisions
201(5)
Statutory Provisions That May Be Amended Only in the Articles of Incorporation
206(1)
Execution
206(1)
Filing
206(1)
Effective Time and Date
207(1)
Organizational Meetings
207(14)
Organizational Meeting Requirements
209(2)
Purpose of Organizational Meeting
211(1)
Incorporators' Resolutions
211(2)
Board of Directors' Resolutions
213(6)
Shareholder Resolutions
219(1)
Unanimous Writings versus Minutes
220(1)
Bylaws
221(8)
Office of the Corporation
221(2)
Shareholder Meetings
223(1)
Number and Term of Directors
224(1)
Meetings of the Board of Directors
225(1)
Removal and Resignation of Directors
226(1)
Director Compensation
226(1)
Director Liability
226(1)
Officers
226(1)
Stock Certificates
227(1)
Dividends
228(1)
Fiscal Year
228(1)
Corporate Seal
228(1)
Corporate Records
228(1)
Amendment of Bylaws
229(1)
Signatures on Bylaws
229(1)
Formation of Special Types of Corporations
229(1)
Statutory Close Corporations
229(1)
Professional Corporations
230(1)
Nonprofit Corporations
230(1)
The Role of the Legal Assistant in Corporate Formation
230(1)
Resources
231(5)
State Statutes
231(1)
Secretary of State
231(1)
Form Books
232(4)
The Corporate Organization
236(58)
Introduction
237(1)
Authority and Duties of Directors
237(7)
Directors' Authority
238(2)
Directors' Duties
240(4)
Personal Liability of Directors
244(4)
Business Judgment Rule
245(1)
Imposition of Personal Liability on Directors
245(3)
Compensation and Indemnification of Directors
248(2)
Compensation of Directors
248(1)
Indemnification
248(2)
Election and Term of Directors
250(4)
Election of Directors
250(1)
Number and Qualifications of Directors
250(1)
Term of Directors
251(3)
Board of Directors Meetings and Resolutions
254(8)
Board of Directors Meetings
254(1)
Annual Meetings of the Board of Directors
255(1)
Notice of Meetings
255(1)
Quorum
256(1)
Minutes
257(1)
Board Actions Without Meeting
257(4)
Corporate Minute Books
261(1)
Corporate Officers
262(4)
Titles and Duties of Officers
263(2)
Personal Liability of Officers
265(1)
Election and Term of Office
265(1)
Shareholders' Rights and Responsibilities
266(4)
Shareholders' Preemptive Rights
266(1)
Shareholders' Right to Inspect Corporate Records
267(1)
Personal Liability of Shareholders
267(3)
Shareholder Meetings
270(15)
Requirements for Annual Meetings
270(2)
Requirements for Special Meetings
272(1)
Location
272(1)
Notice
272(4)
Proxies
276(1)
Quorum
277(1)
Voting at Shareholder Meetings
278(2)
Election of Directors
280(1)
Other Acts Requiring Shareholder Approval
280(1)
Minutes of Shareholder Meetings
281(1)
Unanimous Consents of Shareholders
281(4)
Restrictions on Transfer of Shares of Corporate Stock
285(3)
Shareholder Agreements Restricting Stock Transfers
285(2)
Considerations in Drafting Shareholder Agreements
287(1)
Other Restrictions on Share Transfers
288(1)
Shareholder Actions
288(3)
Individual Actions
289(1)
Representative Actions
289(1)
Derivative Actions
289(2)
The Role of the Legal Assistant in Organizational Corporate Matters
291(1)
Resources
291(3)
The Corporate Financial structure
294(32)
Introduction
295(1)
Capitalization of the Corporation
295(2)
Equity Financing
297(11)
Authorized and Issued Stock
298(4)
Common Stock
302(1)
Preferred Stock
303(5)
Par Value
308(2)
Trend Toward Eliminating Par Value
308(1)
Consideration for Par Value Stock
309(1)
Accounting for Par Value Stock
309(1)
Consideration for Shares of Stock
310(2)
Issuance of Stock
312(3)
Stock Certificates
312(2)
Lost or Destroyed Stock Certificates
314(1)
Fractional Shares and Scrip
314(1)
Redemption of Equity Shares
315(1)
Dividends
316(4)
Availability of Funds for Dividends
316(1)
Types of Dividends
317(1)
Declaration of Dividends
318(1)
Right to Receive Dividends
319(1)
Stock Splits
320(1)
Debt Financing
320(6)
Authority for Debt Financing
321(1)
Bank Loans
322(1)
Bonds
322(4)
Public Corporations and Securities Regulations
326(40)
Introduction
327(1)
The Public Corporation
327(3)
Securities and Securities Markets
330(4)
Definition of Securities
330(2)
Markets
332(2)
The Securities and Exchange Commission
334(1)
Federal Regulation of Securities Offerings Under the Securities Act of 1933
335(6)
Securities Registration
335(4)
Prospectus Requirements
339(2)
Exemptions from the Registration Requirements of the Securities Act of 1933
341(6)
Exempted Securities
343(1)
Exemptions for Offerings Involving Limited Dollar Amounts
344(1)
Intrastate Offering Exemptions
345(1)
Exempted Transactions
346(1)
Antifraud Provisions of the Securities Act
347(2)
Section 11
347(2)
Section 17
349(1)
Federal Regulations Imposed on Public Corporations Under the Securities Exchange Act of 1934
349(8)
Registration Under the Exchange Act
350(1)
Periodic Reporting Requirements
351(2)
Liability for Short-Swing Profits
353(1)
Proxy Regulations
354(1)
Antifraud Provisions Under the Exchange Act
355(2)
State Securities Regulations---Blue Sky Laws
357(2)
State Regulation of Stock Offerings
359(1)
Registration by Filing
359(1)
Registration by Coordination
359(1)
Registration by Qualification
360(1)
Exemptions
360(1)
State Securities Regulations---Antifraud Provisions
360(1)
The Role of the Paralegal
361(2)
Initial Public Offerings
361(1)
Periodic Reporting Requirements
362(1)
Confidentiality
363(1)
Resources
363(3)
Mergers, Acquisitions, and Other Changes to the Corporate Structure
366(44)
Introduction
367(1)
Statutory Mergers and Share Exchanges
367(10)
Mergers
369(4)
Share Exchanges
373(1)
Consolidations
374(1)
State and Federal Laws Affecting Statutory Mergers and Share Exchanges
375(2)
Statutory Merger and Share Exchange Procedures
377(15)
Negotiations and Letter of Intent
378(1)
Plan of Merger
378(4)
Plan of Exchange
382(5)
Due Diligence and Preclosing Matters
387(3)
Closing the Statutory Merger or Share Exchange Transaction
390(1)
Postclosing Matters
391(1)
Asset and Stock Acquisitions
392(2)
Asset Acquisitions
392(1)
Stock Acquisitions
393(1)
State and Federal Laws Affecting Asset and Stock Acquisitions
394(1)
Asset and Stock Acquisition Procedures
394(7)
Negotiations and Letter of Intent
395(1)
Asset Purchase Agreement
395(2)
Stock Purchase Agreement
397(1)
Due Diligence and Preclosing Matters
398(1)
Closing the Asset or Stock Acquisition Transaction
398(2)
Postclosing Matters
400(1)
Amendments to Articles of Incorporation
401(3)
Approval of the Articles of Amendment
401(2)
Articles of Amendment
403(1)
Restated Articles of Incorporation
404(1)
Reorganizations
404(1)
Transactions
404(1)
Transactions
405(1)
Transactions
405(1)
Transactions
405(1)
Transactions
405(1)
Transactions
405(1)
Transactions
405(1)
The Paralegal's Role in Mergers and Acquisitions
405(5)
Qualification of a Foreign Corporation
410(22)
Introduction
411(1)
Determining When Foreign Corporation Qualification Is Necessary
411(7)
State Long-Arm Statutes and Jurisdiction over Foreign Corporations
412(1)
Statutory Requirements for Qualification of Foreign Corporations
413(1)
Consequences of Not Qualifying As a Foreign Corporation
414(4)
Rights, Privileges, and Responsibilities of a Foreign Corporation
418(1)
Qualification Requirements
418(5)
Application for Certificate of Authority
419(2)
Foreign Name Requirements
421(1)
Registered Agent and Registered Office
422(1)
Amending the Certificate of Authority
423(1)
Maintaining the Good Standing of the Foreign Corporation
424(1)
Withdrawing from Doing Business As a Foreign Corporation
424(1)
Registration of a Corporate Name
425(1)
The Role of the Legal Assistant
426(2)
Resources
428(4)
State Statutes
428(1)
Secretaries of State
428(1)
Corporation Service Companies
428(4)
Corporate Dissolution
432(28)
Introduction
433(1)
Voluntary Dissolution
434(18)
Board of Director and Shareholder Approval of Dissolution
434(5)
Articles of Dissolution and Notice of Intent to Dissolve
439(4)
Winding Up and Liquidation
443(5)
Tax Considerations
448(2)
Revocation of Dissolution
450(2)
Involuntary Dissolution
452(5)
Administrative Dissolution
452(2)
Judicial Dissolutions
454(3)
The Role of the Legal Assistant in Dissolving Corporations
457(1)
Resources
457(3)
Employee Benefit Plans
460(30)
Introduction
461(1)
Qualified Plans
461(1)
Laws Governing Qualified Plans
462(2)
Employee Retirement Income Security Act of 1974 (ERISA)
462(2)
Internal Revenue Code
464(1)
Other Laws
464(1)
Elements of a Qualified Plan
464(2)
The Sponsor
464(1)
The Plan
465(1)
The Plan Administrator
466(1)
The Plan Participants
466(1)
ERISA and IRC Requirements Common to All Types of Qualified Plans
466(2)
Plan Must Be Established for the Exclusive Benefit of Employees
467(1)
Minimum Coverage and Participation Requirements
467(1)
Exemptions from the Provisions of ERISA
468(1)
Qualified Pension Plans
468(13)
Contributions
468(1)
The Trust
469(1)
Benefits
469(2)
Distributions
471(1)
Defined Benefit Plans
471(2)
Defined Contribution Plans
473(7)
Integrated Plans
480(1)
Self-Employed Plans
480(1)
Individual Retirement Accounts
480(1)
Nonqualified Pension Plans
481(1)
Employee Welfare Benefit Plans
482(2)
Welfare Benefits
482(1)
Funding
483(1)
Voluntary Employee Benefit Association (VEBA)
483(1)
Qualified Plan Adoption and IRS Approval
484(2)
Annual Reporting Requirements and Disclosure Requirements
486(1)
Form 5500
486(1)
Summary Annual Reports
486(1)
The Role of the Paralegal in Working with Qualified Plans
486(1)
Resources
487(3)
Employment Agreements
490(26)
Introduction
491(1)
Special Considerations for the Employer
492(1)
Special Considerations for the Employee
493(1)
Drafting the Employment Agreement
493(14)
Term of the Agreement
495(1)
Description of Duties
496(1)
Covenant Not to Compete
496(5)
Inventions and Patents
501(2)
Trade Secrets
503(1)
Compensation
504(1)
Employee Benefits
505(1)
Termination of Employment
505(1)
Arbitration of Disputes
506(1)
Vacations
506(1)
Assignability of Contract
506(1)
Amendment or Renewal of Agreement
507(1)
Date and Signatures
507(1)
Sample Employment Agreement
507(4)
The Role of the Paralegal in Drafting Employment Agreements
511(2)
Resources
513(3)
Computers and Corporate Law
516(1)
Introduction
517(1)
Computers in the Law Firm
517(4)
Time and Billing
518(1)
File Management
519(1)
Case Management
520(1)
Law Firms on the Internet
520(1)
Computer Use by Paralegals Working in the Corporate Area
521(5)
Word Processing
522(1)
Legal Research
523(1)
Document Retrieval
524(1)
Calendar Control and Docket Systems
524(1)
Software for the Corporate Legal Department
524(1)
Interfacing with State Agencies
524(2)
The Future of Law Office Automation
526
Appendices
Appendix A Secretary of State Directory
1(2)
Appendix B Uniform Partnership Act
3(10)
Appendix C Uniform Partnership Act (1994)
13(16)
Appendix D Uniform Limited Partnership Act (1976) with 1985 Amendments
29(18)
Appendix E Uniform Limited Liability Company Act
47(23)
Appendix F Excerpts from the Model Business Corporation Act, As Revised Through 1994
70(41)
Appendix G Foreign Corporation Table
111(2)
Appendix H Forms
113
Glossary 1(1)
Index 1

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