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6. Promoters’ Duties

6. Promoters’ Duties
(1) Concept of Promoter '
The term" promoter" includes a" person who, acting alone or in conjunction with one or more other persons, directly or indirectly takes initiative in founding and organizing the business or enterprise of an issuer. " A promoter is often referred to as the" founder" or" organizer" of an enterprise. S. E. C. Rule 405,17 C. F. R. § 230. 405 (2000). The formation of a business en?terprise largely involves business rather than legal problems.
Most state statutes permit a private corporation to be formed by natural persons of legal age or by corporations and other entities. The modern trend is to permit only one person to form a corporation. Some states still require more than one incorporator. While some states provide for a minimum of three directors, the trend is toward permitting one director.
(2) Promoters’ Duties
Every person acting by whatever name in the forming and establishing of a corporation at any period prior to the corporation’s becoming fully incorporated is considered, in law, as occup?ying a fiduciary relationship toward the corporation.
a. A promoter holds a fiduciary relationship to both the corporation as a separate, legal en?tity and to the individual stockholders, and is bound to exercise good faith in all dealings with them.
b. Promoters must fully disclose all essential facts touching their relationship with the cor?poration , stockholders, officers, directors, or any other parties.
378 p3 A Comprehensive Course in Legal English
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c. The fiduciary position of promoters requires that all of their dealings be open and fair. They will not be allowed to benefit by any secret profit of advantage which may be gained at the expense of the corporation or its members.
d. If the new business needs a plant,the promoter must locate one and rent or buy it. If a key person is essential for the success of.the venture,the promoter must negotiate a contract of employment with him. If a distributive network for the business product or a source of raw mate?rials is necessary, the promoter must make the arrangements. In any event, capital must be raised, either through the sale of equity interests in the business, or through loans, or common^ ly,a combination of both.
However, this relationship does not prevent the promoters from fairly and openly doing bus?iness with the corporation at a profit. Any payment or reward offered to promoters for their serv?ices must be with a full disclosure of the facts. The custom of promoters to divide a certain por?tion of the stock secretly among themselves is fraudulent.
(3) Duties for Pre - incorporation Contracts
A corporation’s promoters or those bringing it into existence are in no sense identical with the corporation. They do not represent it in any relation of agency and do not have any authority to enter into preliminary contracts binding upon the corporation. It follows that a corporation cannot,before its official organization,have agents,contract for itself,or be contracted with. It is, therefore, not legally liable or responsible for any contract which a promoter attempts to make prior to its organization.
Courts of equity refuse to enforce a contract against a corporation made on its behalf by promoters, agents, or others unless there appears to be some sound reason for demanding its en?forcement. It is of course,perfectly proper and legal after incorporation for the new corporation to assume voluntarily those contracts made by promoters or agents. In these situations , the cor?poration may sue upon the contract to enforce it or recover for its breach.
A promoter who makes a contract for the benefit of the corporation, before incorporation, is -personally liable on it. It frequently happens that a promoter conducts the ordinary affairs of the business as a corporation before legal incorporation. In such a case, the promoter becomes per?sonally liable on business contracts. Again, it is most important to complete all legal require?ments for incorporation before engaging in any business activities in the corporate name.

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