Georgia § 14-2-640 - Distributions to shareholders.

§ 14-2-640. Distributions to shareholders.

A board of directors may authorize and the corporation may make distributions to its shareholders subject to restriction by the articles of incorporation and the limitation in subsection (c) of this Code section. If the board of directors does not fix the record date for determining shareholders entitled to a distribution (other than one involving a purchase, redemption, or other reacquisition of the corporation's shares), it is the date the board of directors authorizes the distribution. No distribution may be made if, after giving it effect: The corporation would not be able to pay its debts as they become due in the usual course of business; or The corporation's total assets would be less than the sum of its total liabilities plus (unless the articles of incorporation permit otherwise) the amount that would be needed, if the corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution. The board of directors may base a determination that a distribution is not prohibited under subsection (c) of this Code section either on financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances or on a fair valuation or other method that is reasonable in the circumstances. Except as provided in subsection (g) of this Code section, the effect of a distribution under subsection (c) of this Code section is measured: In the case of distribution by purchase, redemption, or other acquisition of the corporation's shares, as of the earlier of: The date money or other property is transferred or debt incurred by the corporation; or The date the shareholder ceases to be a shareholder with respect to the acquired shares; In the case of any other distribution of indebtedness, as of the date the indebtedness is distributed; and In all other cases, as of: The date the distribution is authorized if payment occurs within 120 days after the date of authorization; or The date the payment is made if it occurs more than 120 days after the date of authorization. A corporation's indebtedness to a shareholder incurred by reason of a distribution made in accordance with this Code section is at parity with the corporation's indebtedness to its general, unsecured creditors except to the extent subordinated by agreement or except to the extent secured. Indebtedness of a corporation, including indebtedness issued as a distribution, is not considered a liability for purposes of determinations under subsection (c) of this Code section if its terms provide that payment of principal and interest are to be made only if and to the extent that payment of a distribution to shareholders could then be made under this Code section. If the indebtedness is issued as a distribution, each payment of principal or interest is treated as a distribution, the effect of which is measured on the date the payment is actually made. (Code 1981, § 14-2-640 , enacted by Ga. L. 1988, p. 1070, § 1.) Cross references. - Criminal responsibility of corporations, § 16-2-22 . Personal liability of corporate officer or employee for tax delinquency, § 48-2-52 . Law reviews. - For article discussing distributions from capital surplus to shareholders, see 3 Ga. L. Rev. 11 (1968). For article discussing "earned" surplus and "capital" surplus concepts under Georgia Business Corporation Code, see 3 Ga. L. Rev. 11 (1968). For article discussing corporation director's liability for improper payments to shareholders, see 3 Ga. L. Rev. 11 (1968). For article discussing liability of corporate directors, officers, and shareholders under the Georgia Business Corporation Code, and as affected by provisions of the Georgia Civil Practice Act, see 7 Ga. St. B.J. 277 (1971). For note discussing effect of Georgia law on dividend restrictions, see 24 Ga. B. J. 254 (1961).