Business | Documenting Corporate Decisions

Submitted by Melinda Guzman  – Melinda Guzman Professional Corporation is a law firm based in Sacramento, California. The firm represents clients throughout California in business and litigation matters.

Documenting Corporate Decisions

1. Keep adequate records and minutes of meetings to protect your corporate status.

Individuals often decide to form corporations to run their businesses because of the general corporate protection that a corporation may offer to protect the individual’s personal assets in the event of legal issues. In order to protect that corporate “veil”, Corporate owners are required to hold shareholders’ and directors’ meetings, maintain corporate records, and document major corporate decisions. If you fail to adhere to these formalities and your business runs into legal trouble, a court may decide to disregard your corporate status — and hold you personally responsible for the corporation’s debts.

The good news is that many states have streamlined the procedures for operating a small corporation, permitting owners to make decisions quickly, without jumping through needless procedural hoops.

Who Makes Corporate Decisions?
To understand the corporate decision-making process, let’s look at the different legal roles people traditionally play in a corporation: shareholder, director, officer, and employee. As we consider these roles, keep in mind that you can set up a corporation in which one or two people play all of them.

Shareholders
Shareholders own stock (called shares or ownership interests) in the corporation. Shareholders have the exclusive right to:

• elect and remove directors
• amend the articles of incorporation and bylaws
• approve the sale of all or substantially all of the corporate assets
• approve mergers and reorganizations, and
• dissolve the corporation.

State laws typically require shareholders to hold an annual meeting. However, many states allow shareholders to do this through a “written consent” or “consent resolution” — a document signed by all of the shareholders — instead of a face-to-face meeting.

Directors
Directors owe legal duties to the corporation – duty of care and a duty of loyalty. The board of directors sets policy for the corporation and makes major financial decisions.

Among other things, the directors:

• authorize the issuance of stock
• elect the corporate officers
• set officer and key employee salary amounts
• decide whether to mortgage, sell, or lease real estate, and
• approve loans to or from the corporation

While many states require directors to hold regular meetings, it’s often simpler and just as effective for the directors to take actions by signing a consent resolution or written consent. Alternatively, most states allow directors’ meetings to be held by telephone.
While the organizational structure of corporations separates the rights and duties of shareholders and directors, this separation isn’t much of an issue for small corporations because most shareholders are also directors and officers. However, even if you are both a shareholder and director of your corporation, you must still observe the formalities required by law, which means wearing different hats at different times. For instance, sometimes you’ll have to sign a document in your capacity as director; at other times you’ll sign as a shareholder.

Officers
Officers are responsible for the day-to-day operation and management of the corporation. State laws usually require the corporation to have at least a president, a secretary, and a treasurer (sometimes called a chief financial officer). But in most states, the same person can hold all of the required offices.

The president is usually the chief operating officer (COO) of the corporation. The secretary is responsible for the corporate records. The treasurer, or chief financial officer (CFO), of course, is responsible for the corporate finances, although it’s common to delegate everyday fiscal duties to a bookkeeper.

Employees
In small corporations, the owners are usually also employees of the corporation. Owners of small corporations receive most of their financial benefits through the salary and other compensation they receive as corporate employees.

Documenting Corporate Decisions
While you don’t need to document routine business decisions, you should prepare written minutes or consent resolutions for events or decisions that require formal board of director or shareholder participation.

These include:

• the proceedings of annual meetings of directors and shareholders
• the issuance of stock to new or existing shareholders
• the purchase of real property
• the approval of a long-term lease
• the authorization of a substantial loan or line of credit
• the adoption of a stock option or retirement plan, and
• the making of important federal or state tax decisions

If you document important corporate decisions, whether through formal written minutes or less formal consent resolutions, you’ll protect your limited liability status — and you’ll have solid documentation if key decisions are later questioned by creditors, the courts, or the IRS. In addition, keeping good corporate records allows you to note the reasons for making critical decisions; this can head off controversy and dissension in your ranks in the future.

Next Steps
To learn more about corporate decision making and record keeping, contact an attorney.

Note that this article does not constitute legal advice or an attorney client relationship. Please consult with an attorney for advice.