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Detailed Table of Contents Table of Contents Preface xxxi Acknowledgments xxxiii Chapter 1. Introduction to Business Organizations 1 A. How Is Business Conducted in the United States? 1 B. Introductory Principles 4 C. Introduction to Forms of Organization 4 1. Sole Proprietorships 5 2. General Partnerships 7 3. Limited Liability Partnerships 7 4. Limited Partnerships 8 5. Corporations 8 6. Limited Liability Companies 9 7. Other Forms of Organization 9 Statutory Close Corporation 10 Professional Corporations 10 Professional Limited Liability Company 10 Benefit Corporations 10 Low-Profit Limited Liability Company 11 Nonprofit Corporation 11 D. Considerations for Choice of Business Enterprise 11 1. Ease of Formation and Administrative Start-Up Costs 11 2. Continuity of Existence 12 3. Transferability 12 4. Management 13 5. Raising Capital 14 6. Taxation 14 Federal Income Tax Classification 14 Subchapter S Corporation 15 xi xii Table of Contents Allocating Profits and Losses and Differences Between Subchapter K and Subchapter S 18 Spotlight: The Tax Cuts and Jobs Act 19 7. Risk and Liability Exposure 20 Liability Shields: Comparing Entities 20 Veil Piercing 20 Midland Interiors, Inc. v. Burleigh 22 Veil Piercing in the Parent-Subsidiary Context 29 Veil Piercing and LLCs 30 Single-Member LLCs: Veil Piercing and Charging Orders 31 Spotlight: Start-Up Businesses 32 Ethics Issues 33 Chapter Summary 34 Applying the Concepts 35 Business Organizations in Practice 36 Chapter 2. Agency Law and Agency Relationships in Business Organizations 39 A. What Is an Agency Relationship? 39 B. How Are Agency Relationships Formed? 40 Shiplet v. Copeland 41 C. Agents, Authority, and Contract Liability 47 1. Actual Authority 47 2. Apparent Authority 48 Themis Capital, LLC v. Democratic Republic of Congo 50 3. Estoppel 55 4. Inherent Authority and Inherent Agency Power 56 5. Ratification 57 D. Confirming Agent Authority in Business Dealings 57 E. Agents, Principals, and Tort Liability 58 F. Fiduciary Duties of Agents 59 1. Performance 59 2. Notification and Disclosure 60 3. Loyalty 60 4. Accounting 60 5. Agent’s Liability for Breach of Fiduciary Duty 60 Table of Contents xiii G. The Principal’s Duties 61 1. Compensation 61 2. Reimbursement and Indemnification 61 3. Cooperation 61 H. Contractual Liability of Agents 62 I. Defining and Limiting Authority and Power 63 J. Termination of Agency Relationship 63 Chapter Summary 64 Applying the Concepts 64 Business Organizations in Practice 67 Chapter 3. General Partnerships 69 A. What Is a General Partnership? 69 B. What Law Governs a General Partnership? 70 1. Choice of Law 70 2. The UPA and RUPA 70 3. The Partnership Agreement 73 C. Taxation of Partnerships 73 D. How Are General Partnerships Formed? 76 1. Partnership Formation and Inadvertent Partnerships 76 Fredianelli v. Jenkins 78 2. Administrative Formation- Stage Requirements 88 E. Management and Control Rights and Voting Rules 89 1. Equal Rights to Participate in Management, Per Capita Voting 89 2. Ordinary Course versus Non- Ordinary Course Activities 89 3. Customizing Voting Rules 90 Summers v. Dooley 91 F. Partner as Agent 94 1. Partners Owe Duties of Care and Loyalty to Their Fellow Partners and the Partnership 94 Frame v. Maynard 95 2. Partners’ Authority to Bind the Partnership 100 G. Partner Liability Rules 103 1. Unlimited Personal Liability 103 2. Limited Liability Partnerships 104 H. A Partner’s Interest in the Partnership 104 1. Distribution Rights Are Transferable, but Partnership Status, Management Rights, and Information Rights Are Not Transferable 104 xiv Table of Contents I. Partnership Property 105 1. Partnership Capital and Partnership Property 105 2. Rights in Partnership Property 106 J. Allocation of Profits and Losses 107 1. Distributions and Losses Shared Equally Under Default Rules 107 2. Compensation 108 3. Tax Burden Distributions 108 K. Partners’ Information Rights, Right to an Accounting 109 L. Entering and Withdrawing from the Partnership 109 M. Dissolution, Disassociation, and Winding Up 109 1. Dissolution, Winding Up, and Termination Under the UPA 110 Dissolution Under the UPA 110 Spotlight: Winding Up and Termination Under the UPA 111 Creel v. Lilly 111 Spotlight: Wrongful Dissolution 125 2. Dissociation, Dissolution, Winding Up, and Termination Under the RUPA 126 Dissociation 126 Effect of Partner Dissociation Under the RUPA 126 3. Opportunities for Private Ordering 130 N. Dissolution, Winding Up, Termination, and Service Partners 130 Spotlight: The Tax Cuts and Jobs Act: New Tax Provisions for Pass-Through Businesses 130 Chapter Summary 132 Applying the Concepts 133 Business Organizations in Practice 136 Chapter 4. Registered Limited Liability Partners 139 A. What Is a Registered Limited Liability Partnership? 139 B. Governing Law 141 C. Taxation of LLPs 141 D. How Are LLPs Formed? 142 E. Other Requirements 142 1. Insurance, Financial, and Other Reporting Requirements 142 2. Licensing Requirements and Fees 144 3. Naming Requirements 144 4. Foreign LLP Registration 144 F. Voting and Governance Rules and Agency Powers 148 Table of Contents xv G. Liability Rules 148 1. Partial Shield States 148 2. Full Shield States 149 In re Promedicus Health Group, LLP 152 H. Dissolution and Liquidation of LLPs 155 Chapter Summary 155 Applying the Concepts 156 Business Organizations in Practice 157 Chapter 5. Limited Partnerships and Limited Liability Limited Partnerships 159 A. What Is a Limited Partnership? 160 B. What Law Governs Limited Partnerships? 161 1. Uniform Limited Partnership Acts 161 2. Governing Law 162 3. The Limited Partnership Agreement 162 C. Taxation of Limited Partnerships 162 D. How Are Limited Partnerships Formed? 163 1. The Limited Partnership Certificate 163 Name 163 Registered Office and Agent 164 Names and Addresses of General Partners 164 Dissolution Date 164 Other Matters 165 2. Errors or Deficiencies in the Certificate of Limited Partnership 165 3. Amending the Limited Partnership Certificate 167 E. Management and Control and Voting Rules 167 1. General Partners: Control Rights, Agent Status, and Fiduciary Obligations 167 Spotlight: Is It Possible to Eliminate Fiduciary Duties via Contract? 170 Employees Retirement System of the City of St. Louis v. TC Pipelines GP, Inc., et al. 171 2. Limited Partners 178 F. Liability Rules 179 1. Unlimited Personal Liability for General Partners 179 2. Limited Liability for Limited Partners 179 RULPA’s Control Rule 179 Shimko v. Guenther 181 Potential for Contractual Liability 187 xvi Table of Contents G. Partners’ Interest in the Limited Partnership 187 Distribution Rights Transferable, but Partner Status, Management and Control, and Informational Rights Not Transferable 187 H. Allocation of Profits, Losses, and Distributions 187 I. Actions by Limited Partners 188 J. Partner Withdrawal and Dissolution and Winding Up of Limited Partnerships 189 1. Partner Withdrawal 189 Withdrawal of Limited Partners 189 Withdrawal of General Partners 189 2. Dissolution 191 K. Family Limited Partnerships 194 L. Master Limited Partnerships 194 M. Limited Liability Limited Partnerships 195 N. Foreign Limited Partnerships 196 O. Uniform Limited Partnership Act of 2001 (Last Amended 2013) 197 P. Quick Review: Summary Charts 199 Chapter Summary 202 Applying the Concepts 203 Business Organizations in Practice 204 Chapter 6. Introduction to Business Corporations 207 A. What Is a Corporation? 207 B. Governing Law 209 1. The State of Incorporation 209 2. Choosing a State of Incorporation 210 3. The Internal Affairs Doctrine 211 VantagePoint Venture Partners 1996 v. Examen, Inc. 212 American International Group, Inc. v. Greenberg 221 Spotlight: Internal Affairs and Forum Selection Bylaws 225 C. Taxation of Corporations 227 1. Subchapter C 227 2. Avoiding or Minimizing the Effects of Double Taxation 228 S- Corporations 228 Small Corporations Whose Shareholders Are Employees 228 Section 1244 Stock 228 Qualified Small Business Stock 229 3. Other Taxes 230 Table of Contents xvii D. Formation: Pre- Incorporation Activities by Promoters 230 1. Duties of Promoters to One Another 230 2. Pre- Incorporation Contracts by Promoters 231 Promoter Liability on Pre-Incorporation Contracts 231 Corporation Liability on Pre- Incorporation Promoter Contracts 232 Ratner v. Central National Bank of Miami 234 E. Formation: Incorporation Mechanics 237 Choosing a Corporate Name 237 Selection 237 Reservation 238 Registration 238 Assumed Names 240 F. Formation: The Articles of Incorporation 240 1. Contents of Articles of Incorporation 241 Name and Address 241 Agent for Service of Process 241 Corporate Purposes 243 Description of Stock 245 Incorporators 245 Other Elements as Required by State Law 245 2. Optional Provisions in Articles of Incorporation 246 3. Preemptive Rights 246 4. Filing of Articles of Incorporation 247 G. Corporate Purpose versus Corporate Powers 248 1. Corporate Purpose 248 2. TheUltra Vires Doctrine 249 H. Post- Incorporation Organizational Activities 250 1. Bylaws 250 Introductory Information 251 Information About Directors 251 Information About Officers 252 Information About Shareholders 252 Miscellaneous Information 252 2. Corporate Supplies 253 3. Organizational Meeting 254 Election of Directors 254 Appointment of Officers 254 Adoption of Bylaws 254 xviii Table of Contents Acceptance of Pre- Incorporation Stock Subscriptions 255 Acceptance of Pre- Incorporation Contracts 255 Approval of Corporate Seal and Form of Stock Certificate 255 Banking and Accounting Information 255 S Election 255 Confirmation of § 1244 Stock 256
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