I. Chapter 1 – Intro to Agency Law
A.) Statutes
i.) §33-5-101 – Registered Office & Agent
Each corporation must continuously maintain in this State:
(1) a registered office that may be the same as any of its places of business; and
(2) a registered agent, who may be:
(i) an individual who resides in this State and whose business office is identical with the registered office;
(ii) a domestic corporation or not-for-profit domestic corporation whose business office is identical with the registered office; or
(iii) a foreign corporation or not-for-profit foreign corporation authorized to transact business in this state whose business office is identical with the registered office.
ii.) §33-5-102 – Change of Registered Office & Agent
(a) A corporation may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth:
(1) the name of the corporation;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street address of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name of the new registered agent and the new agent’s written consent (either on the statement or attached to it) to the appointment; and
(6) that after the change or changes are made, the street addresses of its registered office and the business office of its registered agent will be identical.
(b) If a registered agent changes the street address of his business office, he may change the street address of the registered office of any corporation for which he is the registered agent by notifying the corporation in writing of the change and signing (either manually or in facsimile) and delivering to the Secretary of State for filing a statement that complies with the requirements of subsection (a) and recites that the corporation has been notified of the change.
iii.) §33-5-103 – Resignation of Registered Agent
(a) A corporation may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth
(1) the name of the corporation;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street address of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name of the new registered agent and the new agent’s written consent (either on the statement or attached to it) to the appointment; and
(6) that after the change or changes are made, the street addresses of its registered office and the business office of its registered agent will be identical.
(b) If a registered agent changes the street address of his business office, he may change the street address of the registered office of any corporation for which he is the registered agent by notifying the corporation in writing of the change and signing (either manually or in facsimile) and delivering to the Secretary of State for filing a statement that complies with the requirements of subsection (a) and recites that the corporation has been notified of the change.
iv.) §33-2-102 – Articles of Incorporation
(a) The articles of incorporation must set forth:
(1) a corporate name for the corporation that satisfies the requirements of Section 33-4-101;
(2) the number of shares the corporation is authorized to issue, itemized by classes;
(3) the street address of the corporation’s initial registered office and the name of its initial registered agent at that office;
(4) the name and address of each incorporator;
(5) the signature of each incorporator; and
(6) a certificate, signed by an attorney licensed to practice in this State, that all of the requirements of this section have been complied with.
v.) §33-15-107 – Registered Office & Agent of Foreign Corporations
Each foreign corporation authorized to transact business in this State must maintain continuously in this State:
(1) a registered office that may be the same as any of its places of business; and
(2) a registered agent, who may be:
(i) an individual who resides in this State and whose business office is identical with the registered office;
(ii) a domestic corporation or not-for-profit domestic corporation whose business office is identical with the registered office; or
(iii) a foreign corporation or foreign not-for-profit corporation authorized to transact business in this State whose business office is identical with the registered office.
B.) Scope & Purpose of Agency
i.) Agency is a device that allows one person to appoint another person to act for him in such a way as to effect legal acts and liabilities.
C.) Agency Definitions
i.) Agency: The fiduciary relationship that results from the mutual manifestation of consent that one person (the agent) shall act on behalf of and subject to the control of another person (the Principal).
ii.) Principal
1.) Disclosed Principal: A principal is disclosed if the person with whom the agent is transacting business knows that the agent is acting for a principal and knows the Principal’s identity.
2.) Partially Disclosed Principal: A principal is partially disclosed if the person with whom the agent is transacting business knows that the agent is acting for a principal but does NOT know the principal’s identity.
3.) Undisclosed Principal: A principal is undisclosed if the person with whom the agent is transacting business does not know that the agent is acting for a principal.
iii.) Agent
1.) General Agent: A general agent is an agent authorized to conduct a series of transactions involving a continuity of service.
2.) Special Agent: An agent that is authorized to conduct only a single transaction or a series of transactions NOT involving continuity of service.
(a) Example
(1) P is a collector of rare music memorabilia. A rare Metallica platinum award that P has wanted for years is being auctioned off. P and A agree that A will attend the auction and purchase the award for P’s collection.
3.) Subagent: A person appointed by the Agent to perform functions undertaken by the agent for the principal.
(a) Note
(1) The Agent is primarily liable for the subagent and the Principal is secondarily liable.
(2) If the Agent is NOT authorized to appoint a subagent, but nevertheless appoints one anyway, the appointee is not a subagent, but rather the Agent’s agent. In this situation, the Principal is NOT LIABLE.
(3) Question to Ask: Did the Principal expressly OR impliedly authorize the Agent to appoint a Subagent?
(b) Authority to Appoint Subagents
(1) Principal expressly authorizes the hiring of Subagents
(2) The acts to be performed are mechanical, NOT involving skill, discretion, special knowledge, or personal performance
(3) When it is in accord with custom and trade practices to delegate in order to achieve the Agency’s purpose
(4) When it is necessary to accomplish the work to be done (running the Principal’s business)
(5) In an emergency situation where it is otherwise impractical to communicate with the Principal and the appointment of other Agents is required to protect the Principal’s interests.
4.) Master/Servant Relationship: A special type of agency relationship where the Principal (employer or Master) employs the Agent (employee or Servant) to perform services and retains control over the physical conduct in which the employee performs the services.
5.) Independent Contractor: A worker over whom the Principal retains NO RIGHT OF CONTROL.
(a) Independent Contractors CAN be agents, but the Principal’s control comes from the contract of employment.
(b) The Principal is NOT liable for harm resulting from unauthorized physical conduct of the independent contractor.
D.) Elements of the Agency Relationship (Goron v. Doty)
i.) A manifestation or indication that one party (the Principal) consents to having another act on his behalf.
ii.) Consent by the other (the Agent) to accept the undertaking
1.) NO need to manifest this consent to the Principal
iii.) The understanding that the Principal is to be in control
E.) Requirement
th its articles of incorporation or with the laws of this State, for managing the business and regulating the affairs of the corporation;
(4) purchase, receive, lease, or otherwise acquire and own, hold, improve, use, and otherwise deal with real or personal property, or any legal or equitable interest in property, wherever located;
(5) sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of all or any part of its property;
(6) purchase, receive, subscribe for, or otherwise acquire, own, hold, vote, use, sell, mortgage, lend, pledge, or otherwise dispose of, and deal in and with shares or other interests in, or obligations of, any other entity;
(7) make contracts and guarantees, incur liabilities, borrow money, issue its notes, bonds, and other obligations (which may be convertible into or include the option to purchase other securities of the corporation), and secure any of its obligations by mortgage or pledge of any of its property, franchises, or income;
(8) lend money, invest and reinvest its funds, and receive and hold real and personal property as security for repayment;
(9) be a promoter, partner, member, associate, or manager of any partnership, joint venture, trust, or other entity;
(10) conduct its business, locate offices, and exercise the powers granted by Chapters 1 through 20 of this Title within or without this State;
(11) elect directors and appoint officers, employees, and agents of the corporation, define their duties, and fix their compensation, to lend money and credit to them, or to officers, employees, and agents, of affiliated or subsidiary corporations;
(12) pay pensions and establish pension plans, pension trusts, profit sharing plans, share bonus plans, share option plans, and benefit or incentive plans for any or all of its current or former directors, officers, employees, and agents, and such directors, officers, agents, and employees of affiliated, subsidiary, or constituent companies;
(13) make donations for the public welfare or for charitable, scientific, or educational purposes;
(14) transact any lawful business that will aid governmental policy;
(15) make payments or donations, or do any other act, not inconsistent with law, that furthers the business and affairs of the corporation.
ii.) §33-3-103 – Emergency Powers
(a) In anticipation of or during an emergency defined in subsection (d), the board of directors of a corporation may
(1) modify lines of succession to accommodate the incapacity of any director, officer, employee, or agent; and
(2) relocate the principal office, designate alternative principal offices or regional offices, or authorize the officers to do so.
(b) During an emergency defined in subsection (d), unless emergency bylaws provide otherwise:
(1) Notice of a meeting of the board of directors need be given only to those directors whom it is practicable to reach and may be given in any practicable manner, including by publication and radio.
(2) One or more officers of the corporation present at a meeting of the board of directors may be considered to be directors for the meeting, in order of rank and within the same rank in order of seniority, as necessary to achieve a quorum.
(c) Corporate action taken in good faith during an emergency under this section to further
