Dear edgreen321-ga;
Thank you for allowing me an opportunity to answer your interesting
question.
They are correct that this clause is standard legalese used for
by-laws or for other contractual agreements designed to indemnify
particular person or positions within an organization. How “common”
such an indemnification is in the particular corporate entity you are
referring to remains to be seen and only an attorney can advise you
further with regard to the appropriateness of the clause.
It is interesting, however, that in Nevada Corporate Law (81.090
Bylaws: Permissible provisions), no mention is made of an
indemnification clause when outlining additional permissible
provisions. This of course is not to say that it is NOT permissible,
but simply that such a clause is not mentioned “specifically” by
corporate law. Logically, this leads a person to question how common
such a clause really is within coporations at large. While the wording
(when the clause “is” used) is obviously standard, the clause itself,
as applied in this instance, may not be and the timing with wich it
was adopted may also be questionable depending on the individual
circumstances and the "odd" way it was presented.
They “may” also be correct in their assumption that those persons for
whom signatures were forged would have ultimately agreed to such a
disclaimer, but this does not necessiarily make an exemption that
would allow them to affix signatures without going the the formal
channels established by corporate and contractual law. The only way to
dispute this of course would be to poll the individuals themselves
whose signatures were forged and find out from them personally if they
did indeed agree to the support the clause by a two-thirds majority in
order to ammend the by-laws.
What is ironic about this is that the organization unquestionably
attempted to maintain and cover all legal and civil bases, but in
doing so they may very well have exceeded their legal authority by
forging the signatures to the very document that is proposed to
protect them. The question now, I presume, is whether or not the
clause is deemed void due to this unorthodox act. Unfortunately, since
policy prohibits us from practicing law or advising on legal matters,
only a licensed attorney can instruct you from here. In short, the
answer to your question is “yes” this is a standard clause; and “no”
the forging of signatures on a legal document is never an acceptable
or a legal practice unless the party affixing the signature has the
legal authority (i.e. power of attorney) to do so.
In my (unlicensed) opinion you may have a basis upon which you can
make a legal point if your primary interest is to suggest some sort of
incompetence on the part of the corporate board (or perhaps allude to
deceptive practices). Whether or not punitive measures would be taken
against the corporation or it’s officers for such an act would be an
issue that only a court (or an arbitrator) could decide.
I hope you find that that my research exceeds your expectations. If
you have any questions about my research please post a clarification
request prior to rating the answer. I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga
INFORMATION SOURCES
NRS 81: NEVADA LAW GOVERNING MISCELLANEOUS ORGANIZATIONS
See:
81.080 Bylaws: Adoption; amendment; effectiveness.
81.090 Bylaws: Permissible provisions.
81.100 Bylaws: Provisions for unequal property rights.
http://www.lectlaw.com/files/sts12.htm
SEARCH STRATEGY
SEARCH ENGINE USED:
Google ://www.google.com
SEARCH TERMS USED:
NEVADA CORPORATE LAW
NEVADA BY-LAWS
NEVADA CRIMINAL STATUTES
NEVADA CRIMINAL CODE |
Request for Answer Clarification by
edgreen321-ga
on
07 May 2003 13:04 PDT
The signature is mine... I would have never agreed to it, and did
not. This is from an SEC filing.
We paid someone $50,000 (and were supposed to pay him another $50k
when the job was done) to setup a shell, make it tradable on the Pink
Sheets, and get a loan for the company.
It turns out the whole thing was a scam. The people who ran the scam
made themselves officers of the company, and did the filings.
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Clarification of Answer by
tutuzdad-ga
on
07 May 2003 13:31 PDT
This changes things dramaticially of course. In this instance I'd
suspect that you most certainly have a valid complaint in which you,
as a victim, could probably expect a legal remedy up to, or possibly
including restitution (if applicable), potential punitive damages or
conviction of the offender(s). Legally, it would be difficult for the
corporation to defend this action in view of the fact that you are the
aggrieved party and willing to testify against them. In addition, I
believe that a court would hold that if your signature was affixed to
a document without your consent with the explicit purpose to defraud
or deceive both investors and the governement (SEC & IRS) this would
serve as prima facie evidence as to the intent to knowingly commit the
crime of forgery.
I recommend you consult your attorney. Good luck.
Regards;
tutuzdad-ga
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