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Notes on corporations


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“Articles of organization”--the articles of organization of a corporation, including any special acts, as from time to time restated or amended, including articles of merger or consolidation.

“By-laws”--the code or codes of rules adopted for the regulation or management of the affairs of the corporation irrespective of the name or names by which such rules are designated.

“Corporation”--a domestic corporation (i) heretofore established either by general or special law for any one or more of the purposes mentioned in section four or (ii) organized under this chapter of the statute on or after October first, nineteen hundred and seventy-one.

“Member”--one having membership rights, whether or not designated as a member, in a corporation in accordance with the provisions of its articles of organization or by-laws.

“Public charity”--a corporation holding funds subject to the provisions of section eight of chapter twelve.

The corporation shall be formed in the manner prescribed in and subject to section thirty of chapter sixty-nine, section two B of chapter one hundred and fifty-five and sections eleven, twelve and thirteen of chapter one hundred and fifty-six B, except that the corporation shall have no capital stock, the articles of organization shall omit references to stock and stockholders, the articles of organization shall specify the purposes for which the corporation is formed and the corporation may not assume a name that is misleading as to its corporate purposes.

If the corporation has one or more classes of members, the designation of such class or classes, the manner of election or appointment, the duration of membership and the qualification and rights, including voting rights, of the members of each class shall be set forth in the articles of organization or the by-laws. If a corporation does not have members, any action or vote required or permitted, by this chapter of the statute, to be taken by members of the corporation shall be taken by action or vote of the same percentage of the directors of the corporation.

The articles of organization may state a provision eliminating or limiting the personal liability of officers and directors to the corporation or its members for monetary damages for breach of fiduciary duty as an officer or director notwithstanding any provision of law imposing such liability; provided, however, that such provision shall not eliminate or limit the liability of an officer or director (i) for any breach of the officer’s or director’s duty of loyalty to the corporation or its members, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the officer or director derived an improper personal benefit. No provision adopted pursuant to the provisions of this paragraph shall eliminate or limit the liability of an officer or director for any act or omission occurring prior to the date upon which such provision becomes effective.

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A corporation shall have in furtherance of its corporate purposes the powers specified in paragraphs (a) to (d) of this section, inclusive, and clause (k) of section nine of chapter one hundred and fifty-six B and the power to convey land to which it has a legal title. Except as otherwise provided in its articles of organization, a corporation shall have in furtherance of its corporate purposes all of the other powers specified in said section nine except those provided in paragraph (m). To the extent provided in its articles of organization, a corporation shall have the powers specified in sections nine A and nine B of said chapter one hundred and fifty-six B, except that a corporation which constitutes a public charity shall not have the power specified in said section nine B.

Any corporation may hold real and personal estate to an unlimited amount, which estate or its income shall be devoted to the purposes set forth in its charter or articles of organization or in any amendment thereof, and it may receive and hold, in trust or otherwise, funds received by gift or bequest to be devoted by it to such purposes; this provision shall be applicable notwithstanding the specification of a limited amount in any special law.

Indemnification of directors, officers, employees and other agents of a corporation and persons who serve at its request as directors, officers, employees or other agents of another organization or who serve at its request in a capacity with respect to any employee benefit plan may be provided by it to whatever extent shall be specified in or authorized by (i) the articles of organization or (ii) a by-law adopted by the incorporators pursuant to section three or by the members or (iii) a vote adopted by a majority of the members entitled to vote on the election of directors.

A corporation may make, amend and repeal by-laws in the manner prescribed in and subject to sections sixteen and seventeen of chapter one hundred and fifty-six B, substituting members for stockholders. A corporation may prescribe by its by-laws the manner in which and the officers and agents by whom its purposes may be accomplished.

The clerk shall be a resident of the commonwealth unless the corporation shall have a duly appointed resident agent. Any corporation which shall fail to have either a clerk of the corporation who is a resident of the commonwealth or a duly appointed resident agent shall forfeit not more than five hundred dollars to be recovered in the manner described in section one hundred and thirteen of chapter one hundred and fifty-six B.

Except as otherwise expressly provided, a corporation may by its by-laws determine the manner of calling and conducting its meetings; the number of members which shall constitute a quorum; the mode of voting by proxy; and the tenure of office of the directors and officers and the manner of their selection and removal; and may annex suitable penalties to such by-laws, not exceeding twenty dollars for one offense; but no by-law inconsistent with law shall be made by a corporation. Special meetings of the members may be called by the president or the directors, and shall be called by the clerk, or in the case of the death, absence, incapacity or refusal of the clerk, by any other officer, upon written application of members representing at least ten percent of the smallest quorum of members required for a vote upon any matter at the annual meeting of members.

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A director, officer or incorporator of a corporation shall perform his duties as such, including, in the case of a director, his duties as a member of a committee of the board upon which he may serve, in good faith and in a manner he reasonably believes to be in the best interests of the corporation, and with such care as an ordinarily prudent person in a like position with respect to a similar corporation organized under this chapter would use under similar circumstances. In performing his duties, a director, officer or incorporator shall be entitled to rely on information, opinions, reports or records, including financial statements, books of account and other financial records, in each case presented by or prepared by or under the supervision of (1) one or more officers or employees of the corporation whom the director, officer or incorporator reasonably believes to be reliable and competent in the matters presented, or (2) counsel, public accountants or other persons as to matters which the director, officer or incorporator reasonably believes to be within such person’s professional or expert competence, or (3) in the case of a director, a duly constituted committee of the board upon which he does not serve, as to matters within its delegated authority, which committee the director reasonably believes to merit confidence, but he shall not be considered to be acting in good faith if he has knowledge concerning the matter in question that would cause such reliance to be unwarranted. A director, officer or incorporator of a corporation shall not be liable for the performance of his duties if he acts in compliance with this section.

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The by-laws shall contain clear and distinct provisions relative to the election, admission and expulsion of members; the titles, duties, powers and tenure of the officers of the corporation and their election and removal; the number of members required for a quorum; the call for special meetings; the adoption, amendment and repeal of by-laws; the purposes to which the funds of the corporation may be applied and for which assessments may be laid upon the members; the conditions upon which a member or persons dependent upon a deceased member shall be entitled to benefits, if any are to be given by the corporation; the imposition of fines and forfeitures, if any; the deposit, investment and custody of the funds of the corporation; the periodical audit of the accounts of the treasurer; except that such by-laws may not restrict the right of the members thereof to offer nominations from the floor at the annual meeting of the corporation, nor prevent any member thereof from receiving a copy of the by-laws upon written request, but may require that for such nominations from the floor to be valid a notice signed by not less than seven members, giving the names of such nominees, be first filed with the corporation’s recording officer not later than ten days prior to the date of the annual meeting. A by-law shall not be repealed or amended, or an additional by-law adopted, unless notice of such proposed action shall have been given at a previous meeting; and such repeal, amendment or adoption shall not take effect until it has been approved by the state secretary as conformable to law.