mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 1 CHAPTER 2 Incorporation 2.01. Incorporators 2.02. Articles of incorporation 2.03. Incorporation 2.04. Liability for preincorporation transactions 2.05. Organization of corporation 2.06. Bylaws 2.07. Emergency bylaws 2-1
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 2 MODEL BUSINESS CORPORATION ACT ANNOTATED 2.01. INCORPORATORS One or more persons may act as the incorporator or incorporators of a corporation by delivering articles of incorporation to the secretary of state for filing. CROSS-REFERENCES Articles of incorporation, see 2.02. Deliver, see 1.40. Effective time and date of filing, see 1.23. Filing fees, see 1.22. Filing requirements, see 1.20. Organization of corporation by incorporators, see 2.05. Person defined, see 1.40. OFFICIAL COMMENT The only functions of incorporators under the Model Act are (1) to sign the articles of incorporation, (2) to deliver them for filing with the secretary of state, and (3) to complete the formation of the corporation to the extent set forth in section 2.05. One or more persons may serve as incorporator; person is defined in section 1.40 and, together with the term unincorporated entity, includes both individuals and entities; entity is also defined in that section to include corporations, unincorporated associations, limited liability companies, partnerships, trusts, estates, and governments. The Model Act also simplifies the formalities of execution and filing. The requirement in earlier versions of the Model Act and in many state statutes that articles be acknowledged or verified has been eliminated. Also, the requirement that duplicate originals (each being executed as an original document) be submitted has been replaced with the requirement that a signed original and an exact or conformed copy be submitted. See the Official Comment to section 1.20. 2-2
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 3 SECTION 2.01 ANNOTATION HISTORY Model Act Derivation 1950 Act 47 1960 Act 47, amended in 1962 1969 Act 53 Historical Background 1. IN GENERAL Until the end of the 18th century, all American corporations were created by special acts of the state legislatures. Frequently these acts included exclusive franchises for specific functions or geographical areas. The applicants for these special acts, who were the true parties in interest, were the predecessors of today s incorporators. This process of incorporation by negotiated special legislation continued in many states well into the 19th century. With the coming of general corporation acts, beginning with New York in 1811 and Connecticut in 1837, the process of negotiation and special legislation gave way to the modern procedures: the preparation and execution of an initial incorporation document, usually known as the articles of incorporation, and its delivery to a state official, usually the secretary of state. The state official reviews the document to ensure that it complies with the applicable general statute and accepts it for filing, at which point the corporate existence begins. The incorporation document is signed by one or more incorporators. Because of their historical origin their role was first viewed as substantive: many states imposed residency requirements or established other rules such as that they be subscribers for shares. As the process of incorporation was simplified, the role of incorporators became a formality. Today, in virtually all states incorporators serve only the formal function of signing the articles of incorporation. 2-3
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 4 MODEL BUSINESS CORPORATION ACT ANNOTATED 2. THE MODEL ACT By the time the Model Act was first approved in 1950, many states had eliminated most of the formal requirements for, and restrictions applicable to, incorporators; the Model Act never contained these provisions. However, even as late as 1960, when the data about state statutes appearing in the Model Business Corporation Act Annotated were first compiled, all but nine states specified that the incorporators must be three or more natural persons. Section 47 of the 1950 and 1960 Model Acts adopted this majority view and added a requirement that the incorporators be 21 or older. The comment to the 1960 Act stated that the Model Act preferred to follow the traditional concept of several individuals combining to form a corporation, although recognition was given to the fact that a few statutes permitted a single incorporator who could be either an individual, a corporation, or a partnership. Section 47 was revised in 1962 to reduce the number of incorporators to one or more persons, without specification of age, and to permit a domestic or foreign corporation to act as sole incorporator. The comment stated that the rationale behind these changes was in effect, a recognition of the fact that the traditional requirement of three personal incorporators was arbitrary and fictional. The requirement had led to the use of dummy incorporators, i.e., persons having no real interest in the corporation who acted as incorporators at the request of the real party or parties in interest simply to comply with the statutory provisions. Dummy incorporators were routinely used when a single individual desired to incorporate his business or an existing corporation desired to form a subsidiary corporation. Thus, the revision reflected the fact that the role of the incorporator had become largely ritualistic. Section 47 became section 53 in the 1969 edition of the Model Act. The comment noted a continuing movement away from the traditional concept of incorporators: whereas in 1960 only Iowa, Kentucky, Michigan, and Wisconsin allowed a single incorporator, by 1969 27 states had a provision permitting a single incorpora- 2-4
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 5 SECTION 2.01 tor similar to the Model Act. This trend has continued; by 1982 a single incorporator was permitted in all but six jurisdictions. In the 1984 revision references to domestic or foreign corporations as possible incorporators were eliminated since any person may serve as an incorporator and these entities (and others) are thus included in the definition of person in section 1.40. Section 47 of the 1950 and 1960 Model Acts required duplicate originals of articles of incorporation to be filed, and all signatures to be verified. The verification requirement was eliminated in 1962 but the duplicate original requirement remained until the 1984 revision. In the 1984 revision, uniform filing requirements for all documents delivered to the secretary of state appear in section 1.20; the duplicate original requirement is eliminated. See the Official Comment to that section. STATUTES Ala. Code 10-2B-2.01 Alaska Stat. 10.06.205 Ariz. Rev. Stat. Ann. 10-201 (West) Ark. Code Ann. 4-27-201 Cal. Corp. Code 200, 200.5 (West) Colo. Rev. Stat. 7-102-101 Conn. Gen. Stat. 33-635 (West) Del. Code Ann. tit. 8, 101 D.C. Code Ann. 29-101.46 Fla. Stat. Ann. 607.0201 (West) Ga. Code Ann. 14-2-201 14-2-201.1 Haw. Rev. Stat. 414-31 Idaho Code 30-1-201 805 Ill. Comp. Stat. 5/2.05 Ind. Code Ann. 23-1-21-1 (Michie) Iowa Code Ann. 490.201 (West) Kan. Stat. Ann. 17-6001(a), 17-6003 Ky. Rev. Stat. Ann. 271B.2-010 La. Rev. Stat. Ann. 12:21, 12:24, 12:25 (West) 2-5
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 6 MODEL BUSINESS CORPORATION ACT ANNOTATED Me. Rev. Stat. Ann. tit. 13-C, 201 Md. Code Ann., Corps. & Ass ns 2-102(a), 2-104(a) Mass. Gen. Laws Ann. ch. 156D, 2.01 (West) Mich. Comp. Laws Ann. 450.1201 (West) Minn. Stat. Ann. 302A.105 (West) Miss. Code Ann. 79-4-2.01 Mo. Ann. Stat. 351.050 (West) Mont. Code Ann. 35-1-215 Neb. Rev. Stat. 21-2017 Nev. Rev. Stat. 78.030 N.H. Rev. Stat. Ann. 293-A:2.01 N.J. Stat. Ann. 14A:2-6 (West) N.M. Stat. Ann. 53-12-1 N.Y.Bus.Corp.Law 401 (McKinney) N.C. Gen. Stat. 55-2-01 N.D. Cent. Code 10-19.1-09 Ohio Rev. Code Ann. 1701.04(A) (Anderson) Okla. Stat. Ann. tit. 18, 1005 (West) Or. Rev. Stat. 60.044 15 Pa. Cons. Stat. Ann. 1302, 1307 (West) 14 P.R. Laws Ann. 2601 R.I. Gen. Laws 7-1.2-201 S.C. Code Ann. 33-2-101 (Law Co-op.) S.D. Codified Laws 47-1A-201 Tenn. Code Ann. 48-12-101 Tex. Bus. Org. Code Ann. 3.004 (Vernon) Utah Code Ann. 16-10a-201 Vt. Stat. Ann. tit. 11A, 2.01 Va. Code Ann. 13.1-618 Wash. Rev. Code 23B.02.010 W. Va. Code 31D-2-201 Wis. Stat. Ann. 180.0201 (West) Wyo. Stat. 17-16-201 STATUTORY COMPARISON 1. Number of Incorporators All jurisdictions provide for one or more incorporators. 2-6
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 7 SECTION 2.01 2. Requirement That Incorporators Be Natural Persons Nine jurisdictions expressly require incorporators to be natural persons: Alaska, the District of Columbia, Maryland, Minnesota, Missouri, Nevada, New York, Rhode Island, and Vermont. North Dakota does not specify whether incorporators must be natural persons, but has age or legal capacity requirements implying that they must. 3. Entities Other Than Natural Persons Forty-two jurisdictions allow entities other than natural persons to act as incorporators: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. There is, however, a good deal of variation in language. New Mexico provides that one or more persons, or a domestic or foreign corporation may act as incorporators, but person is not defined in the state s corporation act. Georgia also does not expressly define person in its corporation act but provides that one or more persons including domestic or foreign corporations may act as incorporators. Illinois, Maine, New Jersey, and Pennsylvania provide that only natural persons or corporations may act as incorporators. Louisiana refers to one or more natural or artificial persons. Puerto Rico states that incorporators may be natural or juridical persons. The remaining jurisdictions are similar to the 1984 and earlier versions of the Model Act in that both individuals and a broad range of legal entities are included, either by virtue of a listing of entities in the incorporators provision or through a broad definition of person in the act. 4. Age or Capacity Requirements Twenty-one jurisdictions continue to specify age or capacity requirements for incorporators. Alaska, Colorado, the District of 2-7
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 8 MODEL BUSINESS CORPORATION ACT ANNOTATED Columbia, Georgia, Illinois, Missouri, Minnesota, New Jersey, New York, North Dakota, Oregon, and Utah require a natural person to be at least 18 years old in order to act as an incorporator. Nebraska and Vermont require an incorporator to have attained the age of majority and in Maryland an incorporator must be an adult. An incorporator must be of full age in Pennsylvania. Arizona, Louisiana, Oklahoma, and Texas specify that an incorporator must have capacity to contract. Puerto Rico states that the person must be of legal capacity. 5. Special Provisions New Jersey and Tennessee provide that when there are two or more incorporators, if any dies or is unable to act, the other or others may act, and if there is no incorporator able to act, the person for whom the incorporator was acting as agent or the incorporator s legal representative may act. 6. Notice of Intent to File Articles of Incorporation Georgia requires that prior to filing the articles of incorporation, the prospective incorporator shall mail or deliver a notice of intent to incorporate to a newspaper of general circulation of the county where the corporation is to be located. Similarly, Pennsylvania provides that the incorporators must officially publish a notice of intent to file or of the filing of articles of incorporation, which may be published prior to or after the day the articles of incorporation are filed in the Department of State. 7. Powers of Incorporators Massachusetts states that, prior to the corporation s initial issuance of shares, the incorporators may exercise all the powers of shareholders and take any actions required or permitted by law, the articles of organizations, or the bylaws. Likewise, Rhode Island states that the incorporators have all the powers of shareholders until the corporation issues shares of stock, and all the powers of directors until the directors are elected and have assumed their duties. 2-8
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 9 SECTION 2.01 SELECTED CASES No significant reported case involving incorporators was found. Illustrative cases dealing with the liability of promoters on preincorporation contracts entered into on behalf of the corporation to be formed include Frick v. Howard, 23 Wis. 2d 86, 126 N.W.2d 619 (1964); Stanley J. How & Associates v. Boss, 222 F3. Supp. 936 (S.D. Iowa., 1963); Quaker Hill, Inc. v. Parr, 148 Colo. 45, 364 P.2d 1056 (1961); and McArthur v. Times Printing Co., 48 Minn. 319, 51 N.W. 216 (1892). In Rees v. Mosaic Technologies, Inc., 742 F.2d 765, (C.A. Pa. 1984), the court held that preincorporation transactions of a promoter, thereafter adopted by the corporation, could be relied upon to establish in personam jurisdiction over the corporation. The court reasoned that when the acts of a promoter were adopted they became, in effect, acts of the corporation and could be considered in establishing jurisdiction under the state long arm statute. SELECTED REFERENCES Law Review Citations Dooley & Goldman, Some Comparisons Between the Model Business Corporation Act and the Delaware General Corporation Law, 56 BUS. LAW. 737 (2001) Booth, A Chronology of the Evolution of the MBCA, 56 BUS. LAW. 63 (2000) Murphy, The New Virginia Stock Corporation Act: A Primer, 20 U. RICH. L. REV. 67 (1985) Werner, Corporation Law in Search of Its Future, 81 COLUM. L. REV. 1611 (1981) Garret, John Doe Incorporates Himself, 19 BUS.LAW. 535 (1964) Spoerri, One Incorporator, One Director, 19 BUS.LAW. 305 (1963) Note, Corporations: Use of Accommodation Incorporators, Directors, Officers: Potential Liability of Accommodation Personnel, 47 CORNELL L.Q. 443 (1962) 2-9
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 10 MODEL BUSINESS CORPORATION ACT ANNOTATED Other References For discussion of the early history of corporations in the United States, consult the following references: James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1870 1920 (Univ. Press of Virginia, 1970) Louis K Liggett Co. v. Lee, 288 U.S. 517, 541-80 (1933) (Brandeis, J., dissenting) 2.02. ARTICLES OF INCORPORATION (a) The articles of incorporation must set forth: (1) a corporate name for the corporation that satisfies the requirements of section 4.01; (2) the number of shares the corporation is authorized to issue; (3) the street address of the corporation s initial registered office and the name of its initial registered agent at that office; and (4) the name and address of each incorporator. (b) The articles of incorporation may set forth: (1) the names and addresses of the individuals who are to serve as the initial directors; (2) provisions not inconsistent with law regarding: (i) the purpose or purposes for which the corporation is organized; (ii) managing the business and regulating the affairs of the corporation; (iii) defining, limiting, and regulating the powers of the corporation, its board of directors, and shareholders; (iv) a par value for authorized shares or classes of shares; (v) the imposition of personal liability on shareholders for the debts of the corporation to a specified extent and upon specified conditions; (3) any provision that under this Act is required or permitted to be set forth in the bylaws; 2-10
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 11 SECTION 2.02 (4) a provision eliminating or limiting the liability of a director to the corporation or its shareholders for money damages for any action taken, or any failure to take any action, as a director, except liability for (A) the amount of a financial benefit received by a director to which the director is not entitled; (B) an intentional infliction of harm on the corporation or the shareholders; (C) a violation of section 8.33; or (D) an intentional violation of criminal law; and (5) a provision permitting or making obligatory indemnification of a director for liability (as defined in section 8.50(5)) to any person for any action taken, or any failure to take any action, as a director, except liability for (A) receipt of a financial benefit to which the director is not entitled, (B) an intentional infliction of harm on the corporation or its shareholders, (C) a violation of section 8.33, or (D) an intentional violation of criminal law. (c) The articles of incorporation need not set forth any of the corporate powers enumerated in this Act. (d) Provisions of the articles of incorporation may be made dependent upon facts objectively ascertainable outside the articles of incorporation in accordance with section 1.20(k). CROSS-REFERENCES Amendment of articles, see ch. 10A. Bylaws, see 2.06, 2.07, ch. 10B. Conflict of interest, see ch. 8F. Duration of corporate existence, see 3.02. Filing fees, see 1.22. Filing requirements, see 1.20. Incorporators, see 2.01. Indemnification, see ch. 8E. Liability defined, see 8.50(5). Liability of shareholders, see 6.22. Powers, see 3.02. 2-11
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 12 MODEL BUSINESS CORPORATION ACT ANNOTATED Purposes, see 3.01. Restated articles, see 10.07. Share classes, see 6.01. OFFICIAL COMMENT 1. Introduction Section 2.02(a) sets forth the minimum mandatory requirements for all articles of incorporation while section 2.02(b) describes optional provisions that may be included. A corporation that is formed solely pursuant to the mandatory requirements will generally have the broadest powers and least restrictions on activities permitted by the Model Act. The Model Act thus permits the creation of a standard corporation by a simple and easily prepared one-page document. No reference is made in section 2.02(a) either to the period of duration of the corporation or to its purposes. A corporation formed under these provisions will automatically have perpetual duration under section 3.02(1) unless a special provision is included providing a shorter period. Similarly, a corporation formed without reference to a purpose clause will automatically have the purpose of engaging in any lawful business under section 3.01(a). The option of providing a narrower purpose clause is also preserved in sections 2.02(b)(2) and 3.01, with the effect described in the Official Comment to section 3.01. 2. Requirements The only information required in the articles of incorporation to form a standard corporation is: (1) The name, which must meet the requirements of chapter 4 of the Model Act. (2) The number of shares the corporation is authorized to issue. If a single class of shares is authorized, only the number of shares authorized need be disclosed; if more than one class of shares is authorized, however, both the number of authorized shares of each class and a description of the rights of each class must be included. See the 2-12
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 13 SECTION 2.02 Official Comment to sections 6.01 and 6.02. It is unnecessary to specify par value, expected minimum capitalization, or contemplated issue price. (3) The street address of the corporation s initial registered office and the name of its initial registered agent. A mailing address consisting only of a post office box is not sufficient. (4) The name and address of each incorporator. No reference need be made in these standard articles to a variety of other matters that are referred to in earlier versions of the Model Act and the statutes of many states. For example, there is no need to refer to preemptive rights. See section 6.30 and the Official Comment. Generally, no substantive effect should be given to the absence of a specific reference to such matters in section 2.02 since they are referred to in other sections of the Model Act which usually provide an opt in privilege that may be elected. See particularly the list of optional provisions set forth in parts 4 and 5 of this Comment. 3. Optional Provisions Section 2.02(b) describes specific options that may be elected and contains general authorization to include other provisions relevant to the authority of the corporation, its officers and board of directors, or to the management of the corporation s internal affairs. These provisions include: A. INITIAL DIRECTORS Initial directors may be either the permanent directors or interim directors to be replaced by the shareholders after the corporation is organized. B. PURPOSE CLAUSE Under section 2.02(b)(2)(i), the corporation may elect a limited purpose clause or provide for specific purposes without limiting the broad purposes provided in section 3.01. (Specific purposes may be needed, among other reasons, for qualification in certain domestic and foreign jurisdictions and in order to obtain licenses.) 2-13
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 14 MODEL BUSINESS CORPORATION ACT ANNOTATED C. DURATION Nearly every corporation today is formed with perpetual duration, but a corporation may elect a shorter duration under section 2.02(b)(2)(iii). D. PAR VALUE While par value is no longer a mandatory statutory concept, section 2.02(b)(2)(iv) permits the inclusion of optional par value provisions with regard to shares. Special provisions may give effect or meaning to par value essentially as a matter of contract between the parties. These provisions, whether appearing in the articles or in other documents, have only the effect any permissible contractual provision has in the absence of a prohibition by statute. Provisions in the articles establishing an optional par value may also be of use to corporations which are to be qualified in foreign jurisdictions in that franchise or other taxes are computed upon the basis of par value. For a general discussion of the treatment of par value, stated capital, and other historical concepts relating to capitalization, see the Official Comment to section 6.21. E. SHAREHOLDER LIABILITY The basic tenet of modern corporation law is that shareholders are not liable for the corporation s debts by reason of their status as shareholders. Section 2.02(b)(2)(v) nevertheless permits a corporation to impose that liability under specified circumstances if that is desirable. If no provision of this type is included shareholders have no liability for corporate debts except to the extent they become liable by reason of their own onduct or acts. See section 6.22(b). F. CORPORATE POWERS Section 2.02(c) makes it unnecessary to set forth any corporate powers in the articles in view of the broad grant of power in section 3.02. This grant of power, however, may be considered overbroad for certain corporations; if so, it may be qualified or narrowed by appropriate provisions in the articles. 2-14
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 15 SECTION 2.02 G. MISCELLANEOUS Under section 2.02(b)(2)(ii) and (iii) the articles may include any provision not inconsistent with law for managing the business and regulating the affairs of the corporation and defining, limiting, and regulating the powers of the corporation, its board of directors and shareholders. This language is designed to allow the articles to contain any number of miscellaneous provisions that the drafter thinks sufficiently important to be of public record or subject to amendment only by the processes applicable to amendments of articles of incorporation. Basically, the process of amendment of articles of incorporation requires shareholder approval, while bylaws typically may be amended by the board of directors acting alone, though in some instances the power of directors to amend bylaws is restricted. See sections 10.20 10.21 and the Official Comments to those sections. Provisions relating to the business or affairs of the corporation that may be included in the articles may be subdivided into four general classes: (1) Provisions that under the Model Act may be elected only by specific inclusion in the articles of incorporation. A list of these provisions is set forth in part 4 of this Comment. (2) Provisions that under the Model Act may be elected by specific inclusion in either the articles of incorporation or the bylaws, as listed in part 5 of this Comment. (3) Other provisions not referred to in the Model Act. This includes but is not limited to any provision that the Act requires or permits to be set forth in the bylaws. See section 2.02(b)(3). (4) Other provisions that are inconsistent with one or more provisions of the Act but are nonetheless permitted by section 7.32 for inclusion in a shareholders agreement. H. SELF-DEALING TRANSACTIONS When subsidiaries or corporate joint ventures are being formed, special consideration should be given to the inclusion of provisions designed to limit or avoid the unexpected application 2-15
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 16 MODEL BUSINESS CORPORATION ACT ANNOTATED of the doctrines of corporate opportunity and conflict of interest. While this type of clause will not provide total protection, it may be given limited effect, for example, by shifting the burden of proving unfairness or exonerating an arrangement from adverse influences. See Spiegel v. Beacon Participations Inc., 297 Mass. 398, 8 N.E.2d 895 (1937); see generally the Introductory Note and Official Comment to chapter 8F; see also section 8.70 and Official Comment regarding business opportunities. I. DIRECTOR LIABILITY Section 2.02(b)(4) authorizes the inclusion of a provision in the articles of incorporation eliminating or limiting, with certain exceptions, the liability of the directors to the corporation or its shareholders for money damages. This grant of authority to the shareholders is consistent with the more general authorization of section 2.02(b)(2) for the articles to include a wide range of provisions regulating various matters affecting the corporation, including allocating power between the directors and the shareholders. Developments in the mid- and late 1980s highlighted the need to permit reasonable protection of directors from exposure to personal liability, in addition to indemnification, so that directors would not be discouraged from fully and freely carrying out their duties, including responsible entrepreneurial risk-taking. These developments included increased costs and reduced availability of director and officer liability insurance, the decision of the Delaware Supreme Court in Smith v. Van Gorkom, 488 A.2d 858 (1985), and the resulting reluctance of qualified individuals to serve as directors. So long as any such liability-limitation provision does not extend to liability to third parties, shareholders should be permitted except when important societal values are at stake to decide how to allocate the economic risk of the directors conduct between the corporation and the directors. Shareholders of one corporation may view the issue substantially differently than shareholders of another corporation. Accordingly, section 2.02(b)(4) is optional rather than self-executing. In addition, it follows the path of virtually all the states that have 2-16
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 17 SECTION 2.02 adopted charter option statutes and is applicable only to money damages and not to equitable relief. Likewise, nothing in section 2.02(b)(4) in any way affects the right of the shareholders to remove directors, under section 8.08(a), with or without cause. The language any action taken, or any failure to take any action, as a director parallels section 8.30(d). It is recognized that in the case of individuals who are both directors and officers it will often not be clear in which capacity the individual is acting. The phrase as a director emphasizes that section 2.02(b)(4) applies to a director s actions or failures to take action in the director s capacity as a director and not in any other capacity, such as officer, employee, or controlling shareholder. However, it is not intended to exclude coverage of conduct by individuals, even though they are officers, when they are acting in their capacity as directors. Because adoption of a liability-limitation provision is left to the decision of the shareholders, they are given considerable latitude in the extent to which they are permitted to limit directors liability. Accordingly, the exceptions to the statute are few and narrow. As important as validating the shareholders right to determine for themselves the extent of the directors liability is stating the limits of this right in terms promoting a clear understanding of the conduct which is and which is not included in the limitation of liability. Terms such as duty of loyalty, good faith, bad faith, and recklessness seem no more precise than (and therefore as potentially expansive as) gross negligence. All of these formulations are characterizations of conduct rather than definitions of it. Characterizations by nature tend to be more elastic than definitions. Directors should be afforded reasonable predictability; they are entitled to know whether a contemplated course of action will result in personal liability for money damages. Limits on their exculpation from liability are appropriate but should be expressed in terms that minimize the opportunity for after-thefact second-guessing. The language of the exceptions to section 2.02(b)(4) is intended to express the parameters of the shareholders right to 2-17
mbcaa_02_c02_p001-110.qxd 11/26/07 11:52 AM Page 18 MODEL BUSINESS CORPORATION ACT ANNOTATED limit the directors liability in terms that will promote predictability. First, some types of improper conduct are so clearly without any societal benefit that the law should not appear to endorse such conduct, especially in the case of a state-created entity such as a corporation. Second, any liability limitation will be prospective and, therefore, by definition, the shareholders will not be able to know in advance the exact nature or extent of any claims that they may be giving up. Third, the public has an interest in encouraging good corporate governance. While the exceptions to the shareholders right to limit liability are few and narrow, they validate important standards of conduct. Finally, in many cases, there will be shareholders who do not vote in favor of the liability limitation. For these shareholders, there should be an irreducible core of protection, especially in view of the fact that in some cases the votes of the directors themselves as shareholders may be sufficient to approve adoption of the provision. Financial Benefit Permitting limitation of the liability of a director for receipt of a financial benefit to which the director is not entitled would validate conduct in which the director could realize a personal gain. Corporate law has long subjected transactions from which a director could benefit personally to special scrutiny. The exception is limited, however, to the amount of the benefit actually received. Thus, liability for punitive damages could be eliminated. However, punitive damages are not eliminated in either the exception for infliction of harm or for violation of criminal law and, thus, in a particular case (for example, theft), punitive damages may be available. The benefit must be financial rather than in less easily measurable and more conjectural forms, such as business goodwill, personal reputation, or social ingratiation. The phrase received by a director is not intended to be a bright line. As a director s conduct moves toward the edge of what may be exculpated, he should bear the risk of miscalculation. Depending upon the circumstances, a director may be deemed to have received a benefit that the director caused to be directed to another person, for example, a relative, friend, or affiliate. 2-18