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president and secretary of such corporation, and sealed with its corporate seal; for filing the said certificate, the secretary of state shall charge a fee of five dollars.

(Supplement of April 8, 1897, P. L. 1897, p. 175.)

29. The decrease of capital stock may be effected by retiring or reducing any class of the stock, or by drawing the necessary number of shares by lot for retirement, or by the surrender by every shareholder of his shares, and the issue to him in lieu thereof of a decreased number of shares, or by the purchase at not above par of certain shares for retirement, or by retiring shares owned by the corporation or by reducing the par value of shares; and when any corporation shall decrease the amount of its capital stock hereinbefore provided, the certificate decreasing the same shall be published for three weeks successively, at least once in each week, in a newspaper published in the county in which the principal office of the corporation is located; the first publication to be made within fifteen days after the filing of such certificate, and in default thereof the directors of the corporation shall be jointly and severally liable for all debts of the corporation contracted before the filing of the said certificate, and the stockholders shall also be liable for such sums as they may respectively receive of the amount so reduced; provided, no such decrease of capital stock shall release the liability of any stockholder, whose shares have not been fully paid, for debts of the corporation theretofore contracted, nor effect any reduction of the taxes that may be required to be paid by the charters of corporations incorporated by special acts.

P. L. 1846, p. 68; P. L. 1849, p. 305; P. L. 1882, p. 139; P. L. 1885, p. 140.

30. Dividends.

No corporation shall make dividends, except from the surplus or net profits arising from its business, nor divide, withdraw, or in any way pay to the stockholders, or any of them, any part of its capital stock, or reduce its capital stock, except according to this act, and in case of any violation of the provisions of this section, the directors under whose administration the same may happen shall be jointly and severally liable, at any time within six years after paying such dividend, to the corporation and to its creditors, in the event of its dissolution or

§ 29-30

§ 31 insolvency, to the full amount of the dividend made or capital

stock so divided, withdrawn, paid out or reduced, with interest on the same from the time such liability accrued; provided, that any director who may have been absent when the same was done, or who may have dissented from the act or resolution by which the same was done, may exonerate himself from such liability by causing his dissent to be entered at large on the minutes of the directors, at the time the same was done, or forthwith after he shall have notice of the same, and by causing a true copy of said dissent to be published, within two weeks after the same shall have been so entered, in a newspaper published in the county where the corporation has its principal office.

P. L. 1846, p. 17; P. L. 1846, p. 68; P. L. 1846, p. 69; P. L. 1849, p. 305; Act of 1875, § 7.

Williams v. Boice, 38 N. J. Eq., 364, held that an express statutory provision, holding corporation directors personally responsible for dividends paid out of the capital instead of the profits, does not exonerate the stockholders from liability to repay such dividends for the benefit of the creditors of the corporation. "It is undeniably true, as a general proposi"tion, that stockholders are liable in equity to repay, for the benefit of "the creditors of the corporation, money which has been paid to them "out of the capital stock. This is not based on any statute, but upon the "equitable ground that the stock is regarded as a trust fund for all the "debts of the corporation, and no stockholder can entitle himself to any "dividend or share of it until all the debts are paid. And the remedy is “in equity and not at law." (Id., p. 367.)

31. Voluntary dissolution.

Whenever, in the judgment of the board of directors, it shall be deemed advisable and most for the benefit of such corporation that it should be dissolved, the board, within ten days after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose, of which meeting every director shall have received at least three days' notice, shall cause notice of the adoption of such resolution to be mailed to each stockholder residing in the United States, and also beginning within said ten days cause a like notice to be published in a newspaper published in the county wherein the corporation shall have its principal office, at least four weeks successively, once a week, next preceding the time appointed for the same, of a meeting of the stockholders to be held at the office of the corporation, to take action upon the resolutions so adopted by the board of directors, which meeting shall be held between the hours of ten o'clock in the forenoon and three o'clock in the after

STATE TAXES MUST BE PAID BEFORE
DISSOLUTION.

Chapter 126 of the Laws of 1900 provides:

1. Hereafter no corporation organized under any law of this state shall be dissolved by its stockholders until all taxes levied upon or assessed against such corporation by the state of New Jersey in accordance with the provisions of an act entitled "An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof," approved April eighteenth, one thousand eight hundred and eighty-four, and all acts amendatory thereof or supplementary thereto, shall have been fully paid, and a certificate to that effect, signed by the comptroller of the treasury, shall have been annexed to and filed with the certificate of dissolution.

2. This act shall take effect immediately.

Approved March 23, 1900.

This act is intended to prevent corporations from dissolving and distributing their assets without paying the taxes already due to the state.

Attempts to do this have of late been not infrequent.

noon of the day so named, and which meeting may, on the day § 31 so appointed, by consent of a majority in interest of the stockholders present, be adjourned from time to time for not less than eight days at any one time, of which adjourned meeting notice by advertisement in said newspaper shall be given; and if at any such meeting two-thirds in interest of all the stockholders shall consent that a dissolution shall take place and signify their consent in writing, such consent, together with a list of the names and residences of the directors and officers, certified by the president and the secretary or treasurer, shall be filed in the office of the secretary of state, who, upon being satisfied by due proof that the requirements aforesaid have been complied with, shall issue a certificate that such consent has been filed, and the board of directors shall cause such certificate to be published four weeks successively, at least once a week, in a newspaper published in said county; and upon filing in the office of the secretary of state of an affidavit that said certificate has been so published, the corporation shall be dissolved and the board shall proceed to settle up and adjust its business and affairs; whenever all the stockholders shall consent in writing to a dissolution; no meeting or notice thereof shall be necessary, but on filing said consent in the office of the secretary of state he shall forthwith issue a certificate of dissolution, which shall be published as above provided.

P. L. 1870, p. 8; Act of 1875, § 34; P. L. 1877, p. 20; P. L. 1893, p. 445, § 4. Where the dissolution is by unanimous consent of all the stockholders, affidavit of publication is apparently not expressly required to be filed with the Secretary of State as a condition precedent legal dissolution, but it is the better practice to file such affidavit.

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It rests in the judgment of the directors whether the stockholders shall be called together under this section. "It is well settled that the 'shareholders in a corporation cannot extinguish its charter or dissolve "it, and that a court of equity cannot dissolve it at their instance. In the "absence of a statutory provision the franchises can be declared forfeited "and extinguished only at the suit of the state in an appropriate proceed"ing at law. But when it plainly appears that the object for "which the company is formed is impossible of attainment, it becomes the "duty of the company's agents to put an end to its operations and wind "up its affairs, and should they, even though supported by a majority of the shareholders, pursue operations which must eventually be ruinous, "any shareholder feeling aggrieved would, upon plain equitable principle, "be entitled to the assistance of this court, and a decree should be made compelling the directors to wind up the company's business and distrib"ute the assets among those who are entitled to them, unless they can "lawfully be used for other business purposes allowed by the charter." (Benedict v. Columbus Construction Co., 49 N. J. Eq., 23, 36.) See note to forms.

See Sections 53 et seq.

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