6. Breach of the General Standards of Conduct for Directors and Officers, A.R.S. SS 10-830, 10-842. A director or officer may be liable for action or inaction which is not done in good faith with the care of an ordinarily prudent person under similar circumstances and in a manner the director or officer reasonably believes is in the best interest of the corporation. This statutory duty parallels the fiduciary duty which will be discussed in a future column.
7. Liability for Unlawful Distributions, A.R.S. S 10-833(A). A director who votes or assents to a distribution made in violation of the Arizona statutes has personal liability, generally in the amount of the distribution that exceeds what could have been distributed without violating Arizona law. If the director establishes that his or her action was done in compliance with the statutory standards of conduct set forth above, liability may be discharged.
8. The Director’s Conflict of Interest Transaction, A.R.S. SS 10-860 to 863. A director may be liable because a director or related person has a personal, economic, or other interest in a transaction with the corporation if the director’s action does not meet one of the safe harbors. These statutes require careful reading in their application.
9. Liability for False Statements, Reports, Certificates or Statements, A.R.S. S 10-1631. Directors and officers of a corporation may be jointly and severally liable to persons who have become a creditor or shareholder of a corporation on the faith of false, material representations in or alterations to any report, certificate, or other statement made or public notice given or if any book, record, or account of the corporation is knowingly or wrongfully altered. Such officers or directors or even their agents must knowingly or wrongfully authorize, sign or make the false report, certificate, other statement or notice.
10. Felony Liability for Interrogatory and Signature Violations, A.R.S. S 10-1632. Any person who knowingly fails or refuses within the time prescribed by statute to answer truthfully any interrogatories propounded by the Arizona Corporation Commission or signs any Articles, statement, report, application or other document filed with the Commission that is known by the person to be false is guilty of a Class 4 felony. A person who with intent to defraud or deceive knowingly falsifies, alters, steals, destroys, mutilates, defaces, removes or secretes the books, records or accounts of a corporation is guilty of a Class 5 felony. While this statute may not be a basis of a direct claim by a shareholder, it may be useful in negotiating a settlement of disputed litigation, but only in an ethical manner.
These primary areas of potential liability for directors and officers in a closely held corporation provide statutory bases of causes of action that may be filed in a business divorce. These statutory based claims are in addition to the more common tort claims that are likely present in a litigation between owners of a closely held corporation going through a business divorce.