中英对照美国公司法概要幻灯片.ppt

1、 吴越法学网,A Brief Introduction to Corporate Law of USA美国公司法概要 吴越编译, 吴越法学网,一、公司的特征与分类,CHARACTERISTICS CLASSIFICATIONS, 吴越法学网,CORPORATIONS 示范公司法,REVISED MODEL BUSINESS CORPORATION ACT (RMBCA) 1984 AS ADOPTED BY INDIVIDUAL STATES 美国示范公司法（RMBCA），又译美国标准公司法。美国各州都有自己的公司法，尤其以特拉华州公司法最有代表性。, 吴越法学网,公司的特征,CHARACTE

2、RISTICS 特征 LEGAL ENTITY OWNED BY SHAREHOLDERS MANAGEMENT DIRECTORS OFFICERS LIMITED LIABILITY, 吴越法学网,分类,CLASSIFICATIONS PUBLIC CORPORATION公众公司 GOVERNMENTAL UNIT QUASI-GOVERNMENT ENTITY PRIVATE CORPORATION私人公司 FOR PROFIT BUSINESS NON-PROFIT ORGANIZATION, 吴越法学网,股份公司与有限公司,CLASSIFICATIONS PUBLICLY HELD股

3、份公司（开放式公司） FREELY TRADED SHARES PUBLIC MARKET FOR SHARES (WHETHER OR NOT LISTED ON NATIONAL EXCHANGE) CLOSELY HELD有限公司（封闭式公司） SMALL NUMBER OF SHAREHOLDERS RESTRICTIONS ON TRANSFER OF SHARES, 吴越法学网,职业性公司（律师事务所、会计师事务所等）,CLASSIFICATIONS PROFESSIONAL CORPORATIONS “PC” OR “SC” 职业性公司 MEMBERS OF A GIVEN PR

4、OFESSION ARE SHAREHOLDERS NO LIMITED LIABILITY FOR PROFESSIONAL MALPRACTICE, 吴越法学网,依据所得税缴纳方式的公司分类,CLASSIFICATIONS INCOME TAX STATUS所得税地位 “C” CORPORATION “C”类公司 INCOME IS TAXED AT THE CORPORATION LEVEL SHAREHOLDERS TAXED ON DIVIDENDS THEY RECEIVE “S” CORPORATION “S”类公司 NO TAX AT CORPORATION LEVEL PRO

5、FITS PASS THROUGH TO SHAREHOLDERS, 吴越法学网,二、公司的设立过程 INCORPORATION PROCESS, 吴越法学网,公司的设立,INCORPORATION PROCESS 公司设立过程 INCORPORATORS RESPONSIBLE FOR CREATION OF CORPORATION ARTICLES OF INCORPORATION 设立章程 SIGNED BY INCORPORATOR(S) FILED WITH STATE (WI DEPARTMENT OF FINANCIAL INSTITUTIONS) EXISTENCE BEGIN

6、S WHEN ACCEPTED BY DFI, 吴越法学网,公司章程,ARTICLES OF INCORPORATION 章程 NAME MUST SPECIFICALLY DESIGNATE AS CORPORATION (“CORP.”, “COMPANY”, “INC.”, “LTD”) CANNOT BE DECEPTIVELY SIMILAR TO ANOTHER CORPORATIONS NAME, 吴越法学网,公司章程续,ARTICLES OF INCORPORATION 章程 DURATION PERPETUAL, OR LIMITED PERIOD PURPOSE SPECI

7、FIC (OR LIMITED) ANY LAWFUL BUSINESS NUMBER OF AUTHORIZED SHARES, 吴越法学网,公司章程续,ARTICLES OF INCORPORATION 章程 REGISTERED OFFICE AND AGENT OFFICE MUST BE IN STATE AGENT MUST BE RESIDENT OF STATE NAME AND ADDRESS OF INCORPORATOR(S), 吴越法学网,内部管理文件,BYLAWS 内部管理规则 DETAILED RULES THAT CONTROL INTERNAL MATTERS

8、OF CORPORATION USUALLY, BOTH BOD AND SHAREHOLDERS HAVE POWER TO CREATE, AMEND OR REPEAL, 吴越法学网,公司设立的效力,CORPORATE POWERS 公司的权力、公司设立的效力 GRANTED BY STATE LAW EXAMPLES PERPETUAL EXISTENCE FILE LAWSUITS OWN PROPERTY MAKE CONTRACTS PERFORM ACTS NECESSARY TO CONDUCTING LAWFUL BUSINESS, 吴越法学网,越权规则,“ULTRA VI

9、RES” 越权规则 ACTS THAT ARE BEYOND CORPORATE POWERS OR PURPOSE STATED IN ARTICLES OF INCORPORATION FOLLOWING CAN SUE TO PREVENT SHAREHOLDER CORPORATION, AGAINST OFFICERS OR DIRECTORS STATE ATTORNEY GENERAL, 吴越法学网,按设立地分类,DOMESTIC CORPORATION 本州公司 FOREIGN CORPORATION 外州公司 DOING BUSINESS IN ANY STATE OTHER

10、 THAN STATE IN WHICH INCORPORATED REGISTERED AGENT AND OFFICE CANNOT SUE IN THAT STATE UNTIL OBTAINING “CERTIFICATE OF AUTHORITY” ALIEN CORPORATION 外国公司 INCORPORATED IN A FOREIGN COUNTRY, 吴越法学网,公司发起人,PROMOTERS 发起人 PREINCORPORATION CONTRACTS CORPORATION NOT AUTOMATICALLY LIABLE TO BE LIABLE, MUST “AD

11、OPT” THE PROMOTERS CONTRACT AFTER COMING INTO EXISTENCE, 吴越法学网,先公司合同,PROMOTERS 发起人 PREINCORPORATION CONTRACTS PROMOTER IS PERSONALLY LIABLE AVOIDING LIABLILITY IRREVOCABLE OFFER TO CORP SPECIFIC CONTRACT TERMS PROMOTER, THIRD PARTY AND CORP ENTER INTO “NOVATION” RELEASE FROM THIRD PARTY, 吴越法学网,公司设立瑕

12、疵,DEFECTIVE INCORPORATION 设立瑕疵 “DE JURE” IN TOTAL COMPLIANCE WITH STATE STATUTE “DE FACTO” 事实公司 ELEMENTS: EXISTING STATE STATUTE GOOD FAITH EFFORT TO COMPLY CONDUCTING BUSINESS A CORP ONLY THE STATE CAN CHALLENGE CORPS EXISTENCE, 吴越法学网,冒牌公司,DEFECTIVE INCORPORATION CORP BY ESTOPPEL 冒牌公司 THIRD PARTY C

13、ONDUCTS BUSINESS WITH ANOTHER BUSINESS THIRD PARTY BELIEVES OTHER BUSINESS TO BE A CORP THIRD PARTY CANNOT HOLD “SHAREHOLDERS” (OWNERS) PERSONALLY LIABLE IF BUSINESS FAILED TO PROPERLY INCORPORATE, 吴越法学网,揭开公司面纱,“PIERCING CORPORATE VEIL” PERSONAL LIABILITY IMPOSED UPON SHAREHOLDERS CIRCUMSTANCES CONS

14、IDERED UNDERCAPITALIZATION FAILURE TO OBSERVE FORMALITIES NONPAYMENT OF DIVIDENDS SIPHONING OF FUNDS BY CONTROLLING SHAREHOLDER NONFUNCTIONING OF OTHER OFFICERS OR DIRECTORS, 吴越法学网,揭开公司面纱续,“PIERCING CORPORATE VEIL” CIRCUMSTANCES CONSIDERED USE OF CORP AS FACADE FOR CONTROLLING SHAREHOLDERS OTHER FIN

15、ANCIAL AFFAIRS FRAUD, OR OTHER INJUSTICE, 吴越法学网,三、公司的融资结构 FINANCIAL STRUCTURE, 吴越法学网,融资结构：公司证券分类,“SECURITY”证券 STOCK (EQUITY SECURITY)股票 OWNERSHIP INTEREST BOND (DEBT SECURITY)债券 HOLDER IS A CREDITOR OF CORPORATION, 吴越法学网,股东权益,RIGHTS OF SHAREHOLDER DIVIDENDS PARTICIPATE IN CONTROL (VOTE ON MAJOR ISSU

16、ES AT SHAREHOLDERS MEETING) SHARE OF NET ASSETS UPON LIQUIDATION OF CORPORATION, 吴越法学网,股票分类：普通股,STOCK (SHARES) CLASSES股票分类 COMMON STOCK BASIC GROUP OF OWNERS VOTING RIGHTS, 吴越法学网,优先股,STOCK CLASSES PREFERRED STOCK优先股 RECEIVE SPECIFIED PRIORITIES ORDINARILY, RIGHT TO DIVIDEND BEFORE COMMON STOCK SHARE

17、HOLDERS MAY BE “CUMULATIVE” RIGHT TO DIVIDEND CARRIES FORWARD (AND ACCUMULATES) IF NOT PAID IN CURRENT YEAR USUALLY, NO VOTING RIGHTS, 吴越法学网,优先股续,STOCK CLASSES PREFERRED STOCK MAY BE “CALLABLE” CORP CAN PURCHASE FROM SHAREHOLDER AT CORPS OPTION MAY BE “CONVERTIBLE” INTO COMMON STOCK, 吴越法学网,股票的其他分类,S

18、TOCK CATEGORIES “AUTHORIZED” CORP MAY ISSUE UP TO THIS AMOUNT AS STATED IN ARTICLES OF INCORPORATION 授权发行的股份 “ISSUED” SOLD OR OTHERWISE TRANSFERRED BY CORPORATION TO SHAREHOLDERS 已发行股份 “OUTSTANDING” HELD BY SHAREHOLDERS AT ANY GIVEN POINT IN TIME 股东持有的股份 “TREASURY” PREVIOUSLY ISSUED, BUT HAVE BEEN R

19、EACQUIRED BY CORP 公司回购的股份（无表决权）, 吴越法学网,取得股份的对价（方式）,CONSIDERATION FOR STOCK CASH现金 PROPERTY财产 PROMISSORY NOTE可转让的票据 SERVICES PERFORMED已完成服务 PROMISE TO PERFORM SERVICES IN THE FUTURE承诺的服务, 吴越法学网,认股协议,PRE-INCORPORATION SUBSCRIPTION AGREEMENTS OFFER BY SHAREHOLDER TO BUY STOCK IN CORP NOT YET FORMED RMB

20、CA TREATS AS IRREVOCABLE OFFER FOR 6 MONTHS AFTER DATE OF OFFER WISCONSIN OFFER IS AUTOMATICALLY ACCEPTED BY CORP UPON FORMATION OF CORP, 吴越法学网,“发水股份”（出资瑕疵）,“WATERED STOCK” 发水股票 STOCK THAT HAS BEEN ISSUED FOR INADEQUATE CONSIDERATION EXAMPLES OVERVALUED REAL ESTATE PROMISE OF FUTURE SERVICES THAT IS

21、 NOT PERFORMED, 吴越法学网,公司债券的种类,BOND 有担保债券 A LOAN OF MONEY TO CORP HOLDER ENTITLED TO PERIODIC PAYMENT OF INTEREST AND RETURN OF PRINCIPAL WHEN BOND “MATURES” SECURED BY SPECIFIC CORPORATE PROPERTY DEBENTURE 无担保债券 UNSECURED LOAN, SO THAT HOLDER IS A GENERAL CREDITOR OF CORP, 吴越法学网,债券承销协议,INDENTURE债券承销

22、协议 AGREEMENT BETWEEN CORP ISSUING BOND AND THE FINANCIAL INSTITUTION ADMINISTERING THE BOND, 吴越法学网,公司证券转让：记名股票,TRANSFER OF SECURITIES证券转让 STOCK CERTIFICATES股权证书 REGISTERED记名式 TRANSFERRED BY OWNER SIGNING ON CERTIFICATE, NAMING TRANSFEREE, AND RETURNING TO CORP CORP ISSUES NEW CERTIFICATE IN NAME OF

23、TRANSFEREE, 吴越法学网,不记名股票,TRANSFER OF SECURITIES STOCK CERTIFICATES BEARER不记名式 NO SPECIFIC SHAREHOLDER NAMED ON CERTIFICATE SHAREHOLDER IS WHOEVER HAS PHYSICAL POSSESSION OF THE CERTIFICATE, 吴越法学网,上市公司股份转让,TRANSFER OF SECURITIES MODERN PRACTICE FOR PUBLICLY TRADED CORPORATIONS 上市公司股票 NO PHYSICAL CERTI

24、FICATE OFTEN HELD IN “DEPOSITORY” AND/OR IN BROKER ACCOUNT, WHO KEEP ACCOUNT RECORDS (RATHER THAN PYSICAL CERTIFICATES), 吴越法学网,公司红利分配方式,DIVIDENDS 红利 THREE TYPES CASH现金 PROPERTY财产 STOCK股票 NO AUTOMATIC RIGHT TO DIVIDEND IN A GIVEN YEAR, 吴越法学网,非法红利,DIVIDENDS ILLEGAL DIVIDENDS非法分红 CORP INSOLVENT, OR ISS

25、UING WOULD CAUSE CORP TO BECOME INSOLVENT DIRECTORS WHO APPROVE MAY BE PERSONALLY LIABLE, 吴越法学网,三、公司的管理 MANAGEMENT, 吴越法学网,公司的管理层次,SHAREHOLDERS股东 OWNERS PARTICIPATE IN MAJOR DECISIONS BOARD OF DIRECTORS董事 POLICY DECISIONS ELECT OFFICERS DECIDE TO ISSUE DIVIDENDS OFFICERS经理、高管 DAY-TO-DAY OPERATION OR

26、BUSINESS, 吴越法学网,股东大会,SHAREHOLDERS SHAREHOLDERS MEETING AT LEAST ANNUALLY MUST BE GIVEN WRITTEN NOTICE OF PLACE AND TIME ELECT DIRECTORS VOTE ON OTHER MAJOR ISSUES, 吴越法学网,股东大会的要求,SHAREHOLDERS MEETING QUARUM 百分比要求 MINIMUM NUMBER OF SHAREHOLDERS (OR RIGHT TO VOTE SHARES) THAT MUST BE PRESENT AT MEETING

27、 IN ORDER TO CONDUCT BUSINESS MAY TAKE ACTION WITHOUT MEETING, IF UNANIMOUS WRITTEN CONSENT OF SHAREHOLDERS, 吴越法学网,累积投票制,SHAREHOLDERS MEETING CUMULATIVE VOTING累积投票 ONLY FOR ELECTION OF DIRECTORS STATE LAW OR BY-LAWS MUST PERMIT THE NUMBER OF VOTES EACH SHAREHOLDER RECEIVES (USUALLY ONE PER SHARE) MU

28、LTIPLIED BY THE NUMBER OF DIRECTORS BEING ELECTED AT THAT MEETING, 吴越法学网,表决权代理与表决权信托,SHAREHOLDERS MEETING PROXY VOTING 表决权代理 SHAREHOLDER DESIGNATES A PARTY WHO CAN VOTE ON BEHALF OF SHAREHOLDER (OFTEN CORPORATE MANAGEMENT) VOTING TRUST表决权信托 SHAREHOLDERS ASSIGN SHARES TO TRUSTEE, WHO VOTES ACCORDING

29、TO TRUST AGREEMENT SHAREHOLDERS STILL RECEIVE DIVIDENDS, 吴越法学网,投票协议,SHAREHOLDERS MEETING VOTING AGREEMENT 投票协议 CONTRACT BETWEEN SHAREHOLDERS TO CAST THEIR VOTES IN A CERTAIN WAY, 吴越法学网,优先认股权,SHAREHOLDERS MEETING PREEMPTIVE RIGHTS优先认购权 RIGHT OF SHAREHOLDER TO PURCHASE AMOUNT OF SHARES IN NEW ISSUANCE

30、 SO THAT PERCENTAGE OWNERSHIP INTEREST IS MAINTAINED, 吴越法学网,股东查阅权,SHAREHOLDERS RIGHT TO REVIEW CORPORATE RECORDS股东查阅权 MUST BE CURRENT SHAREHOLDER WRITTEN DEMAND STATING THE PURPOSE MADE IN GOOD FAITH PROPER PURPOSE, 吴越法学网,董事会,BOARD OF DIRECTORS 董事会 ACT AS A GROUP, NOT INDIVIDUALLY MAY HAVE ONLY ONE

31、DIRECTOR MAY HAVE “STAGGERED TERMS” （限制性条款，绊脚石条款） MID-TERM VACANCY USUALLY FILLED BY BOD UNTIL NEXT SHAREHOLDER MEETING, 吴越法学网,董事会会议,BOARD OF DIRECTORS MEETINGS REGULAR DIRECTORS NOT ENTITLED TO SPECIFIC NOTICE SPECIAL DIRECTORS ENTITLED TO WRITTEN NOTICE TELECONFERENCE UNANIMOUS CONSENT, 吴越法学网,董事会会

32、议续,BOARD OF DIRECTORS MEETINGS QUARUM REQUIRED PROXY VOTING NOT ALLOWED DISSENTING DIRECTOR MUST HAVE DISSENT RECORDED IN “MINUTES” OF MEETING TO AVOID POSSIBLE PERSONAL LIABILITY FOR DECISION OF MAJORITY OF BOARD, 吴越法学网,MANAGEMENT经理,OFFICERS ACT INDIVIDUALLY, AS AGENTS OF THE CORPORATION AGENCY PRI

33、NCIPLES OF AUTHORITY APPLY, 吴越法学网,经理：商业判断规则,OFFICERS BUSINESS JUDGMENT RULE PROTECTS AGAINST LIABILITY FOR MISTAKES MADE IN GOOD FAITH AND WITH REASONABLE CARE THAT ARE BELIEVED TO BE IN THE BEST INTEREST OF CORPORATION, 吴越法学网,利益冲突（诚信义务）,CONFLICTS OF INTEREST (DUTY OF LOYALTY) WHERE DIRECTOR OR OFFI

34、CERS PERSONAL INTEREST IS OPPOSED TO THE CORPORATIONS INTEREST MUST NOTIFY CORP OF CONFLICT MUST FULLY DISCLOSE THE CONFLICT MUST ABSTAIN FROM VOTING OR OTHERWISE PARTICIPATING IN THE DECISION INVOLVING THE CONFLICT, 吴越法学网,诚信义务：公司机会规则,CONFLICTS OF INTEREST (DUTY OF LOYALTY) CORPORATE OPPORTUNITY DOC

35、TRINE DIRECTOR OR OFFICER WHO IS MADE AWARE OF BUSINESS OPPORTUNITY, IN THE SAME LINE OF BUSINESS AS THE CORP, MUST FIRST MAKE CORP AWARE OF THE OPPORTUNITY AND ALLOW CORP TO TAKE ADVANTAGE BEFORE TAKING PERSONAL ADVANTAGE, 吴越法学网,对少数股东的义务,DUTY TO MINORITY SHAREHOLDERS DUTY IS GENERALLY TO ACT IN BES

36、T INTERESTS OF CORPORATION NOT SPECIFICALLY FOR BENEFIT OF MAJORITY OR MINORITY SHAREHOLDERS A CONTROLLING SHAREHOLDER MAY NOT ACT TO UNFAIRLY AFFECT RIGHTS OF OTHER SHAREHOLDERS, 吴越法学网,公司诉讼LAWSUITS,CORP IS A LEGAL “PERSON” AND AS SUCH MAY SUE AND BE SUED SHAREHOLDER DERIVATIVE SUIT 股东派生诉讼 SHAREHOLD

37、ER(S) FILING LAWSUIT AGAINST OFFICERS OR DIRECTORS ON BEHALF OF THE CORPORATION ITSELF TO PREVENT, OR SEEK COMPENSATION FOR, WRONGFUL DECISIONS OR CONDUCT, 吴越法学网,股东代表诉讼,SHAREHOLDER DERIVATIVE SUIT REQUIREMENT: EXHAUST ALL CORPORATE REMEDIES WRITTEN DEMAND TO OFFICERS AND DIRECTORS WAIT FOR 90 DAY PE

38、RIOD AFTER DEMAND BEFORE FILING LAWSUIT, 吴越法学网,四、公司并购与资产收购M&A, ASSETS PURCHASE, 吴越法学网,MERGERS公司兼并,TWO (OR MORE) CORPS COMBINE SO THAT ONLY ONE CORPORATION SURVIVES (CORP A + CORP B = CORP A) SHAREHOLDERS OF NON-SURVIVING CORPS USUALLY RECEIVE SHARES OF THE SURVIVING CORP DIRECTORS PROPOSE, AND SHARE

39、HOLDERS OF BOTH CORPS MUST APPROVE DEBT TRANSFERS TO SURVIVING CORP, 吴越法学网,CONSOLIDATIONS公司合并,TWO (OR MORE) CORPS COMBINE SO THAT A NEW CORPORATION IS FORMED (CORP A + CORP B = CORP C) SHAREHOLDERS OF NON-SURVIVING CORPS USUALLY RECEIVE SHARES OF THE NEW CORP DIRECTORS PROPOSE, AND SHAREHOLDERS OF B

40、OTH CORPS MUST APPROVE DEBT TRANSFERS TO NEW CORP, 吴越法学网,ASSET PURCHASE资产收购,ONE CORP SELLS ITS PHYSICAL ASSETS (AND POSSIBLY ACCOUNTS RECEIVABLE) TO ANOTHER CORP SELLING CORP USUALLY THEN PROCEEDS TO DISSOLVE AND DISTRIBUTE PROCEEDS TO ITS SHAREHOLDERS, 吴越法学网,STOCK PURCHASE股权收购,ONE CORP BUYS ALL, OR A CONTROLLING INTEREST IN, THE STOCK OF ANOTHER C