Introduced Version
HOUSE BILL No. 1306
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 23-1; IC 23-4-1-54; IC 23-16-3; IC 23-17-1-3;
IC 23-17-18-1; IC 23-18.
Synopsis: Various corporate law matters. Changes the name of the
corporate law survey commission to the business law survey
commission. Permits the execution of certain documents by an attorney
in fact. Provides that distributions by a corporation or limited liability
company do not include reasonable compensation, retirement
payments, or guaranty payments. Provides for conversion of certain
domestic or foreign entities to certain other entities. Specifies the rights
of access of members to records or information of a limited liability
company. Specifies the procedure for revocation of dissolution by a
limited liability company.
Effective: July 1, 2006.
Bright
January 10, 2006, read first time and referred to Committee on Judiciary.
Introduced
Second Regular Session 114th General Assembly (2006)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in
this style type, and deletions will appear in
this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
this style type. Also, the
word
NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
this style type or
this style type reconciles conflicts
between statutes enacted by the 2005 Regular Session of the General Assembly.
HOUSE BILL No. 1306
A BILL FOR AN ACT to amend the Indiana Code concerning
business and other associations.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 23-1-17-5; (06)IN1306.1.1. -->
SECTION 1. IC 23-1-17-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 5. Official comments
may be published by the general corporation law study commission
(P.L.237-1986) and the corporate business law survey commission
(IC 23-1-54-3). After their publication, the comments may be consulted
by the courts to determine the underlying reasons, purposes, and
policies of this article and may be used as a guide in its construction
and application.
SOURCE: IC 23-1-18-1; (06)IN1306.1.2. -->
SECTION 2. IC 23-1-18-1, AS AMENDED BY P.L.178-2005,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2006]: Sec. 1. (a) A document must satisfy the requirements
of this section, and of any other section that adds to or varies these
requirements, to be entitled to filing by the secretary of state.
(b) This article must require or permit filing the document in the
office of the secretary of state.
(c) The document must contain the information required by this
article. It may contain other information as well.
(d) The document must be typewritten or printed, legible, and
otherwise suitable for processing.
(e) The document must be in the English language. A corporate
name need not be in English if written in English letters or Arabic or
Roman numerals, and the certificate of existence required of foreign
corporations need not be in English if accompanied by a reasonably
authenticated English translation.
(f) The document must be executed:
(1) by the chairman of the board of directors of the domestic or
foreign corporation or by any of its officers;
(2) if directors have not been selected or the corporation has not
been formed, by an incorporator;
(3) if the corporation is in the hands of a receiver, trustee, or other
court appointed fiduciary, by that fiduciary; or
(4) for purpose of annual or biennial reports, by:
(A) a registered agent;
(B) a certified public accountant; or
(C) an attorney;
employed by the business entity.
(g) Except as provided in subsection
(k), (m), the person executing
the document shall sign it and state beneath or opposite the signature
the person's name and the capacity in which the person signs. A
signature on a document authorized to be filed under this article may
be:
(1) a facsimile;
The or
(2) made by an attorney in fact.
(h) A power of attorney relating to the signing of a document
authorized to be filed under this article by an attorney in fact may
but is not required to be:
(1) sworn to, verified, or acknowledged;
(2) signed in the presence of a notary public;
(3) filed with the secretary of state; or
(4) included in another written agreement.
However, the power of attorney must be retained in the records of
the corporation.
(i) A document
authorized to be filed under this article may but
is not required to contain:
(1) the corporate seal;
(2) an attestation by the secretary or an assistant secretary; and
(3) an acknowledgment, verification, or proof.
(h) (j) If the secretary of state has prescribed a mandatory form for
the document under section 2 of this chapter, the document must be in
or on the prescribed form.
(i) (k) The document must be delivered to the office of the secretary
of state for filing as described in section 1.1 of this chapter and the
correct filing fee must be paid in the manner and form required by the
secretary of state.
(j) (l) The secretary of state may accept payment of the correct filing
fee by credit card, debit card, charge card, or similar method. However,
if the filing fee is paid by credit card, debit card, charge card, or similar
method, the liability is not finally discharged until the secretary of state
receives payment or credit from the institution responsible for making
the payment or credit. The secretary of state may contract with a bank
or credit card vendor for acceptance of bank or credit cards. However,
if there is a vendor transaction charge or discount fee, whether billed
to the secretary of state or charged directly to the secretary of state's
account, the secretary of state or the credit card vendor may collect
from the person using the bank or credit card a fee that may not exceed
the highest transaction charge or discount fee charged to the secretary
of state by the bank or credit card vendor during the most recent
collection period. This fee may be collected regardless of any
agreement between the bank and a credit card vendor or regardless of
any internal policy of the credit card vendor that may prohibit this type
of fee. The fee is a permitted additional charge under IC 24-4.5-3-202.
(k) (m) A signature on a document that is transmitted and filed
electronically is sufficient if the person transmitting and filing the
document:
(1) has the intent to file the document as evidenced by a symbol
executed or adopted by a party with present intention to
authenticate the filing; and
(2) enters the filing party's name on the electronic form in a
signature box or other place indicated by the secretary of state.
SOURCE: IC 23-1-20-7; (06)IN1306.1.3. -->
SECTION 3. IC 23-1-20-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 7.
(a) "Distribution"
means a direct or indirect transfer of money or other property (except
a corporation's own shares) or incurrence or transfer of indebtedness by
a corporation to or for the benefit of its shareholders in respect of any
of its shares under IC 23-1-28. A distribution may be in the form of a
declaration or payment of a dividend; a purchase, redemption, or other
acquisition of shares; a distribution of indebtedness; or otherwise.
(b) The term does not include:
(1) amounts constituting reasonable compensation for past or
present services or reasonable payments made in the ordinary
course of business under a bona fide retirement plan or other
benefit program; or
(2) the making of or payment or performance upon a bona
fide guaranty or similar arrangement by a corporation to or
for the benefit of its shareholders.
However, the failure of an amount to satisfy subdivision (1), or of
a payment or performance to satisfy subdivision (2), is not
determinative of whether the amount, payment, or performance is
a distribution.
SOURCE: IC 23-1-38.5-1; (06)IN1306.1.4. -->
SECTION 4. IC 23-1-38.5-1, AS AMENDED BY P.L.178-2005,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2006]: Sec. 1. The following definitions apply throughout this
chapter:
(1) "Charter" means:
(A) the original articles of incorporation and all
amendments required to be filed by a domestic
corporation; or
(B) any original public organic documents and all
amendments required to be filed by a domestic other
entity;
with the secretary of state in connection with the formation of
the corporation or other entity.
(1) (2) "Converting entity" means
(A) a
domestic business corporation or
a domestic other entity
that adopts a plan of entity conversion.
or
(B) a foreign other entity converting to a domestic business
corporation.
(3) "Domestic entity" means a corporation or other entity
that is incorporated or organized under the laws of Indiana.
(4) "Filing entity" means an entity that is created by filing a
public organic document.
(5) "Foreign entity" means a corporation or other entity that
is incorporated or organized under a law other than the laws
of Indiana.
(6) "Limited liability entity" means a corporation or other
entity that provides for limited personal liability of its interest
holders.
(2) (7) "Other entity" means a limited liability company, limited
liability partnership, limited partnership,
general partnership,
business trust, real estate investment trust, or any other entity that
is formed under the requirements of applicable law and that is not
described in subdivision (1) or (3). a corporation.
(3) (8) "Surviving entity" means the corporation or other entity
that is in existence immediately after consummation of an entity
conversion under this chapter.
(9) "Unlimited liability entity" means an entity that does not
limit the personal liability of its interest holders.
SOURCE: IC 23-1-38.5-2; (06)IN1306.1.5. -->
SECTION 5. IC 23-1-38.5-2, AS AMENDED BY P.L.178-2005,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2006]: Sec. 2. (a) A corporation, a nonprofit corporation,
or any other entity engaging in a business that is subject to
regulation under another statute may be a party to a transaction
under this chapter unless the transaction is prohibited or
authorized under another statute.
(b) This chapter may not be used to effect a transaction that:
(1) converts an insurance company organized on the mutual
principle to a company organized on a stock share basis;
(2) converts a nonprofit corporation to a domestic corporation or
other entity; or
(3) converts a domestic corporation or other entity to a nonprofit
corporation.
SOURCE: IC 23-1-38.5-4; (06)IN1306.1.6. -->
SECTION 6. IC 23-1-38.5-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 4. (a) A foreign
business corporation may become a domestic business corporation only
if the domestication is permitted by the organic law of the foreign
corporation. The laws of Indiana govern the effect of domesticating in
Indiana under this chapter.
(b) A domestic business corporation may become a foreign business
corporation only if the domestication is permitted by the laws of the
foreign jurisdiction. Regardless of whether the laws of the foreign
jurisdiction require the adoption of a plan of domestication, the
domestication must be approved by the adoption by the corporation of
a plan of domestication in the manner provided in this section. The
laws of the foreign jurisdiction govern the effect of domesticating in
that jurisdiction.
(c) The plan of domestication must include:
(1) a statement of the jurisdiction in which the corporation is to be
domesticated;
(2) the terms and conditions of the domestication;
(3) the manner and basis of reclassifying the shares of the
corporation following its domestication into:
(A) shares or other securities;
(B) obligations;
(C) rights to acquire shares or other securities;
(D) cash;
(E) other property; or
(F) any combination of the types of assets referred to in
clauses (A) through (E); and
(4) any desired amendments to the articles of incorporation of the
corporation following its domestication.
(d) If:
(1) a debt security, note, or similar evidence of indebtedness for
money borrowed, whether secured or unsecured; or
(2) a contract of any kind;
that is issued, incurred, or executed by a domestic corporation before
July 1, 2002, contains a provision applying to a merger of the
corporation and the document does not refer to a domestication of the
corporation, the provision applies to a domestication of the corporation
until the provision is amended after that date.
SOURCE: IC 23-1-38.5-5; (06)IN1306.1.7. -->
SECTION 7. IC 23-1-38.5-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 5. In the case of a
domestication of a domestic
business corporation in a foreign
jurisdiction, the following apply:
(1) The plan of domestication must be adopted by the board of
directors.
(2) After adopting the plan of domestication, the board of
directors must submit the plan to the shareholders for their
approval. The board of directors must also transmit to the
shareholders a recommendation that the shareholders approve the
plan, unless the board of directors makes a determination that
because of conflicts of interest or other special circumstances it
should not make that recommendation, in which case the board of
directors must communicate to the shareholders the basis for that
determination.
(3) The board of directors may condition its submission of the
plan of domestication to the shareholders on any basis.
(4) If the approval of the shareholders is to be given at a meeting,
the corporation must notify each shareholder, whether or not the
shareholder is entitled to vote, of the meeting of shareholders at
which the plan of domestication is to be submitted for approval.
The notice must state that the purpose, or one (1) of the purposes,
of the meeting is to consider the plan. The notice must contain or
be accompanied by a copy or summary of the plan. The notice
must include or be accompanied by a copy of the articles of
incorporation as they will be in effect immediately after the
domestication.
(5) Unless a greater requirement is established by the articles of
incorporation or by the board of directors acting under
subdivision (3), the plan of domestication may be submitted for
the approval of the shareholders:
(A) at a meeting at which a quorum consisting of at least a
majority of the votes entitled to be cast on the plan exists; and
(B) if any class or series of shares is entitled to vote as a
separate group on the plan, at a meeting at which a quorum of
the voting group consisting of at least a majority of the votes
entitled to be cast on the domestication by that voting group is
present.
(6) Separate voting on the plan of domestication by voting groups
is required by each class or series of shares that:
(A) is to be reclassified under the plan of domestication into
other securities, obligations, rights to acquire shares or other
securities, cash, other property, or any combination of the
types of assets referred to in this clause;
(B) would be entitled to vote as a separate group on a
provision of the plan that, if contained in a proposed
amendment to articles of incorporation, would require action
by separate voting groups under IC 23-1-30-7; or
(C) is entitled under the articles of incorporation to vote as a
voting group to approve an amendment of the articles.
(7) If any provision of the articles of incorporation, the bylaws, or
an agreement to which any of the directors or shareholders are
parties, adopted or entered into before July 1, 2002, applies to a
merger of the corporation and that document does not refer to a
domestication of the corporation, the provision applies to a
domestication of the corporation until the provision is amended
after that date.
SOURCE: IC 23-1-38.5-6; (06)IN1306.1.8. -->
SECTION 8. IC 23-1-38.5-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 6. (a) After the
domestication of a foreign
business corporation has been authorized as
required by the laws of the foreign jurisdiction, the articles of
domestication must be executed by an officer or other duly authorized
representative. The articles must set forth:
(1) the name of the corporation immediately before the filing of
the articles of domestication and, if that name is unavailable for
use in Indiana or the corporation desires to change its name in
connection with the domestication, a name that satisfies the
requirements of IC 23-1-23-1;
(2) the jurisdiction of incorporation of the corporation
immediately before the filing of the articles of domestication in
that jurisdiction; and
(3) a statement that the domestication of the corporation in
Indiana was duly authorized as required by the laws of the
jurisdiction in which the corporation was incorporated
immediately before its domestication under this chapter.
(b) The articles of domestication must either contain all of the
provisions that IC 23-1-21-2(a) requires to be set forth in articles of
incorporation and any other desired provisions that IC 23-1-21-2(b)
permits to be included in the articles of incorporation or must have
attached articles of incorporation. In either case, provisions that would
not be required to be included in restated articles of incorporation may
be omitted.
(c) The articles of domestication must be delivered to the secretary
of state for filing and are effective at the time provided in IC 23-1-18-4.
(d) If the foreign corporation is authorized to transact business in
this state under IC 23-1-49, its certificate of authority is canceled
automatically on the effective date of its domestication.
SOURCE: IC 23-1-38.5-7; (06)IN1306.1.9. -->
SECTION 9. IC 23-1-38.5-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 7. (a) Whenever a
domestic business corporation has adopted and approved, in the
manner required by this chapter, a plan of domestication providing for
the corporation to be domesticated in a foreign jurisdiction, an officer
or another authorized representative of the corporation must execute
articles of charter surrender on behalf of the corporation. The articles
of charter surrender must set forth:
(1) the name of the corporation;
(2) a statement that the articles of charter surrender are being filed
in connection with the domestication of the corporation in a
foreign jurisdiction;
(3) a statement that the domestication was approved by the
shareholders and, if voting by any separate voting group was
required, by each separate voting group, in the manner required
by this chapter and the articles of incorporation; and
(4) the corporation's new jurisdiction of incorporation.
(b) The articles of charter surrender must be delivered by the
corporation to the secretary of state for filing. The articles of charter
surrender are effective at the time provided in IC 23-1-18-4.
SOURCE: IC 23-1-38.5-8; (06)IN1306.1.10. -->
SECTION 10. IC 23-1-38.5-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 8. (a) When a
domestication of a foreign
business corporation in Indiana becomes
effective:
(1) the title to all real and personal property, both tangible and
intangible, held by the corporation remains in the corporation
without reversion or impairment;
(2) the liabilities of the corporation remain the liabilities of the
corporation;
(3) an action or proceeding pending against the corporation
continues against the corporation as if the domestication had not
occurred;
(4) the articles of domestication, or the articles of incorporation
attached to the articles of domestication, constitute the articles of
incorporation of the corporation;
(5) the shares of the corporation are reclassified into shares, other
securities, obligations, rights to acquire shares or other securities,
or cash or other property in accordance with the terms of the
domestication as approved under the laws of the foreign
jurisdiction, and the shareholders are entitled only to the rights
provided by those terms and under those laws; and
(6) the corporation is considered to:
(A) be incorporated under the laws of Indiana for all purposes;
(B) be the same corporation without interruption as the
corporation that existed under the laws of the foreign
jurisdiction; and
(C) have been incorporated on the date it was originally
incorporated in the foreign jurisdiction.
(b) When a domestication of a domestic business corporation in a
foreign jurisdiction becomes effective, the foreign business corporation
is considered to:
(1) appoint the secretary of state as its agent for service of process
in a proceeding to enforce the rights of shareholders who exercise
appraisal rights in connection with the domestication; and
(2) agree that it will promptly pay the amount, if any, to which
shareholders are entitled under IC 23-1-40.
(c) The owner liability of a shareholder in a foreign corporation that
is domesticated in Indiana is as follows:
(1) The domestication does not discharge owner liability under
the laws of the foreign jurisdiction to the extent owner liability
arose before the effective time of the articles of domestication.
(2) The shareholder does not have owner liability under the laws
of the foreign jurisdiction for a debt, obligation, or liability of the
corporation that arises after the effective time of the articles of
domestication.
(3) The provisions of the laws of the foreign jurisdiction continue
to apply to the collection or discharge of any owner liability
preserved by subdivision (1), as if the domestication had not
occurred and the corporation were still incorporated under the
laws of the foreign jurisdiction.
(4) The shareholder has whatever rights of contribution from
other shareholders are provided by the laws of the foreign
jurisdiction with respect to any owner liability preserved by
subdivision (1), as if the domestication had not occurred and the
corporation were still incorporated under the laws of that
jurisdiction.
SOURCE: IC 23-1-38.5-9; (06)IN1306.1.11. -->
SECTION 11. IC 23-1-38.5-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 9. (a) Unless otherwise
provided in a plan of domestication of a domestic business corporation,
after the plan has been adopted and approved as required by this
chapter, and at any time before the domestication has become effective,
the plan of domestication may be abandoned by the board of directors
without action by the shareholders.
(b) If a domestication is abandoned under subsection (a) after
articles of charter surrender have been filed with the secretary of state
but before the domestication has become effective, a statement that the
domestication has been abandoned under this section, executed by an
officer or other authorized representative, must be delivered to the
secretary of state for filing before the effective date of the
domestication. The statement is effective upon filing and the
domestication is abandoned and may not become effective.
(c) If the domestication of a foreign business corporation in Indiana
is abandoned under the laws of the foreign jurisdiction after articles of
domestication have been filed with the secretary of state, a statement
that the domestication has been abandoned, executed by an officer or
other authorized representative, must be delivered to the secretary of
state for filing. The statement is effective upon filing and the
domestication is abandoned and may not become effective.
SOURCE: IC 23-1-38.5-10; (06)IN1306.1.12. -->
SECTION 12. IC 23-1-38.5-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 10. (a) A domestic
business corporation may become a domestic other entity under a plan
of entity conversion. If the organic law of the
other surviving entity
does not provide for a conversion, section 14 of this chapter governs
the effect of converting to that form of entity.
(b) A domestic
business corporation may become a foreign other
entity
under a plan of entity conversion only if the entity conversion
is permitted by the laws of the foreign jurisdiction. The laws of the
foreign jurisdiction govern the effect of converting to an other entity in
that jurisdiction.
(c) A domestic other entity may become a domestic
business
corporation
Section 14 under a plan of entity conversion. Section 15
of this chapter governs the effect of converting to a domestic
business
corporation.
(d) A domestic other entity may become a different domestic
other entity under a plan of entity conversion. If the organic law of
the surviving entity does not provide for a conversion, section 15
of this chapter governs the effect of converting to the different
domestic other entity.
(e) A domestic other entity may become a foreign other entity
under a plan of entity conversion only if the entity conversion is
permitted by the laws of the foreign jurisdiction. The laws of the
foreign jurisdiction govern the effect of converting to an other
entity in that jurisdiction.
(f) A domestic other entity may become a foreign corporation
under a plan of entity conversion only if the entity conversion is
permitted by the laws of the foreign jurisdiction. The laws of the
foreign jurisdiction govern the effect of converting to a corporation
in that jurisdiction.
(g) A foreign other entity may become a domestic corporation
or other entity if the organic law of the foreign other entity
authorizes the entity to become an entity in another jurisdiction.
The laws of Indiana govern the effect of converting to a domestic
corporation or other entity under this chapter.
(h) A foreign corporation may become a domestic other entity
if the organic law of the foreign corporation authorizes the
corporation to become an entity in another jurisdiction. The laws
of Indiana govern the effect of converting to a domestic other
entity under this chapter.
(i) If the organic law of a domestic other entity does not provide
procedures for the approval of an entity conversion, the conversion
must be adopted and approved, and the entity conversion effectuated,
in the same manner as a merger of the other entity, and its interest
holders are entitled to appraisal rights if appraisal rights are available
upon any type of merger under the organic law of the other entity. If the
organic law of a domestic other entity does not provide procedures for
the approval of either an entity conversion or a merger, a plan of entity
conversion must be adopted and approved
and the entity conversion
effectuated
and appraisal rights exercised, in accordance with the
procedures set forth in this chapter and in IC 23-1-40.
Without limiting
the provisions of this subsection, a domestic other entity whose organic
law does not provide procedures for the approval of an entity
conversion is subject to subsection (e) and section 12(7) of this chapter.
For purposes of applying this chapter and IC 23-1-40:
(1) the other entity and its interest holders, interests, and organic
documents taken together are considered a domestic business
corporation and the shareholders, shares, and articles of
incorporation of a domestic business corporation, as the context
may require; and
(2) if the business and affairs of the other entity are managed by
a group of persons that is not identical to the interest holders, that
group is considered the board of directors.
(d) A foreign other entity may become a domestic business
corporation if the organic law of the foreign other entity authorizes it
to become a corporation in another jurisdiction. The laws of this state
govern the effect of converting to a domestic business corporation
under this chapter.
(e) If a debt security, note, or similar evidence of indebtedness for
money borrowed, whether secured or unsecured, or a contract of any
kind, issued, incurred, or executed by a domestic business corporation
before July 1, 2002, applies to a merger of the corporation and the
document does not refer to an entity conversion of the corporation, the
provision applies to an entity conversion of the corporation until the
provision is amended after that date.
(j) If as a result of conversion one (1) or more shareholders or
interest holders of a surviving entity become subject to owner
liability for the debts, obligations, or liabilities of the surviving
entity or any other person or entity, approval of the plan of
conversion requires each shareholder or interest holder of the
converting entity to execute a separate written consent to become
subject to owner liability.
SOURCE: IC 23-1-38.5-11; (06)IN1306.1.13. -->
SECTION 13. IC 23-1-38.5-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 11. A plan of entity
conversion must include:
(1) a statement of the type of other entity that the surviving entity
will be and, if it will be a foreign other entity, its jurisdiction of
organization;
(2) the terms and conditions of the conversion;
(3) the manner and basis of converting the shares or interests of
the domestic business corporation converting entity following its
conversion into shares, interests, or other securities, obligations,
rights to acquire interests or other securities of the surviving
entity or cash, other property, or any combination of the types of
assets referred to in this subdivision; and
(4) the full text, as in effect immediately after consummation of
the conversion, of the organic documents of the surviving entity.
SOURCE: IC 23-1-38.5-12; (06)IN1306.1.14. -->
SECTION 14. IC 23-1-38.5-12 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 12. In the case of an
entity conversion of a domestic
business corporation to a domestic
other entity or foreign other entity, the following apply:
(1) The plan of entity conversion must be adopted by the board of
directors.
(2) After adopting the plan of entity conversion, the board of
directors must submit the plan to the shareholders for their
approval. The board of directors must also transmit to the
shareholders a recommendation that the shareholders approve the
plan, unless the board of directors makes a determination that
because of conflicts of interest or other special circumstances it
should not make that recommendation, in which case the board of
directors must communicate to the shareholders the basis for that
determination.
(3) The board of directors may condition its submission of the
plan of entity conversion to the shareholders on any basis.
(4) If the approval of the shareholders is to be given at a meeting,
the corporation must notify each shareholder, whether or not
entitled to vote, of the meeting of shareholders at which the plan
of entity conversion is to be submitted for approval. The notice
must state that the purpose, or one (1) of the purposes, of the
meeting is to consider the plan. The notice must contain or be
accompanied by a copy or summary of the plan. The notice must
include or be accompanied by a copy of the organic documents as
they will be in effect immediately after the entity conversion.
(5) Unless a greater requirement is established by the articles of
incorporation or by the board of directors acting under
subdivision (3), approval of the plan of entity conversion requires
the approval of the shareholders at a meeting at which a quorum
consisting of at least a majority of the votes entitled to be cast on
the plan exists.
(6) In addition to the vote required under subdivision (5), separate
voting on the plan of equity conversion by voting groups is also
required by each class or series of shares. Unless the articles of
incorporation, or the board of directors acting under subdivision
(3), requires a greater vote or a greater number of votes to be
present, if the corporation has more than one (1) class or series of
shares outstanding, approval of the plan of entity conversion
requires the approval of each separate voting group at a meeting
at which a quorum of the voting group consisting of at least a
majority of the votes entitled to be cast on the conversion by that
voting group is present.
(7) If any provision of the articles of incorporation, the bylaws, or
an agreement to which any of the directors or shareholders are
parties, adopted or entered into before July 1, 2002, applies to a
merger of the corporation and the document does not refer to an
entity conversion of the corporation, the provision applies to an
entity conversion of the corporation until the provision is
subsequently amended.
(8) (7) If as a result of the conversion one (1) or more
shareholders of the corporation would become subject to owner
liability for the debts, obligations, or liabilities of any other person
or entity, approval of the plan of conversion requires the
execution, by each shareholder, of a separate written consent to
become subject to the owner liability.
SOURCE: IC 23-1-38.5-13; (06)IN1306.1.15. -->
SECTION 15. IC 23-1-38.5-13, AS AMENDED BY P.L.178-2005,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2006]: Sec. 13. (a) After conversion of a domestic
business
corporation to a domestic other entity has been adopted and approved
as required by this chapter, articles of entity conversion must be
executed on behalf of the corporation by any officer or other duly
authorized representative. The articles must:
(1) set forth the name of the corporation immediately before the
filing of the articles of entity conversion and the name to which
the name of the corporation is to be changed, which must satisfy
the organic law of the surviving entity;
(2) state the type of other entity that the surviving entity will be;
(3) set forth a statement that the plan of entity conversion was
duly approved by the shareholders in the manner required by this
chapter and the articles of incorporation; and
(4) if the surviving entity is a filing entity, either contain all of the
provisions required to be set forth in its public organic document
and any other desired provisions that are permitted, or have
attached a public organic document, except that, in either case,
provisions that would not be required to be included in a restated
public organic document may be omitted.
(b) After the conversion of a domestic other entity to a domestic
business corporation has been adopted and approved as required by the
organic law of the other entity, an officer or another duly authorized
representative of the other entity must execute articles of entity
conversion on behalf of the other entity. The articles must:
(1) set forth the name of the other entity immediately before the
filing of the articles of entity conversion and the name to which
the name of the other entity is to be changed, which must satisfy
the requirements of IC 23-1-23-1;
(2) set forth a statement that the plan of entity conversion was
duly approved in accordance with the organic law of the
other
converting entity; and
(3) either contain all of the provisions that IC 23-1-21-2(a)
requires to be set forth in articles of incorporation and any other
desired provisions that IC 23-1-21-2(b) permits to be included in
articles of incorporation, or have attached articles of
incorporation, except that, in either case provisions that would not
be required to be included in restated articles of incorporation of
a domestic
business corporation may be omitted.
(c) After the conversion of a domestic other entity to a different
domestic other entity has been adopted and approved as required by the
organic law of the different other entity
and, if applicable, section
10(j) of this chapter, an officer or another authorized representative
of the other entity must execute the articles of entity conversion on
behalf of the other entity. The articles must:
(1) set forth the name of the other entity immediately before the
filing of the articles of entity conversion and the name to which
the name of the
other converting entity is to be changed, which
must satisfy the requirements of
IC 23-1-23-1; the organic laws
of the surviving entity;
(2) set forth a statement that the plan of entity conversion was
approved in accordance with the organic law of the
other
converting entity; and
(3) if the surviving entity is a filing entity, either contain all the
provisions required to be set forth in its public organic document
and any other desired provisions that are permitted or have
attached a public organic document, except that, in either case,
provisions that would not be required to be included in a restated
public organic document may be omitted.
(d) After the conversion of a foreign other entity to a domestic
business corporation has been authorized as required by the laws of the
foreign jurisdiction, articles of entity conversion must be executed on
behalf of the foreign other entity by any officer or authorized
representative. The articles must:
(1) set forth the name of the
other converting entity immediately
before the filing of the articles of entity conversion and the name
to which the name of the other entity is to be changed, which must
satisfy the requirements of IC 23-1-23-1;
(2) set forth the jurisdiction under the laws of which the other
converting entity was organized immediately before the filing of
the articles of entity conversion and the date on which the other
entity was organized in that jurisdiction;
(3) set forth a statement that the conversion of the other
converting entity was duly approved in the manner required by
its organic law; and
(4) either contain all of the provisions that IC 23-1-21-2(a)
requires to be set forth in articles of incorporation and any other
desired provisions that IC 23-1-21-2(b) permits to be included in
articles of incorporation, or have attached articles of
incorporation, except that, in either case, provisions that would
not be required to be included in restated articles of incorporation
of a domestic business corporation may be omitted.
(e) After the conversion of a foreign other entity to a different or
foreign corporation to a domestic other entity has been authorized as
required by the laws of the foreign jurisdiction, the articles of entity
conversion must be executed on behalf of the foreign other converting
entity by any officer or authorized representative. The articles must:
(1) set forth the name of the other converting entity immediately
before the filing of the articles of entity conversion and the name
to which the name of the other converting entity is to be changed,
which must satisfy the requirements of IC 23-1-23-1; the organic
laws of the surviving entity;
(2) set forth the jurisdiction under the laws of which the other
converting entity was organized immediately before the filing of
the articles of entity conversion and the date on which the other
converting entity was organized in that jurisdiction;
(3) set forth a statement that the conversion of the other
converting entity was approved in the manner required by its
organic law; and
(4) if the surviving entity is a filing entity, either contain all the
provisions required to be set forth in its public organic document
and any other desired provisions that are permitted or have
attached a public organic document, except that, in either case,
provisions that would not be required to be included in a restated
public organic document may be omitted.
(f) The articles of entity conversion must be delivered to the
secretary of state for filing and take effect at the effective time provided
in IC 23-1-18-4.
(g) If the converting entity is a foreign corporation or a foreign
other entity that is authorized to transact business in Indiana under a
provision of law similar to IC 23-1-49, its certificate of authority or
other type of foreign qualification is canceled automatically on the
effective date of its conversion.
(h) After the conversion of a foreign corporation to a different
foreign other entity has been authorized as required by the law of the
foreign jurisdiction, the articles of entity conversion must be executed
on behalf of the foreign other entity by any officer or authorized
representative. The articles must:
(1) set forth the name of the foreign corporation immediately
before the filing of the articles of entity conversion and the name
to which the name of the foreign corporation is to be changed,
which must satisfy the requirements of IC 23-1-23-1;
(2) set forth the jurisdiction under the law under which the foreign
corporation was organized immediately before the filing of the
articles of entity conversion and the date on which the other entity
was organized in that jurisdiction;
(3) set forth a statement that the conversion of the foreign
corporation was approved in the manner required by its organic
law; and
(4) if the surviving entity is a filing entity, either contain all the
provisions required to be set forth in its public organic document
and any other desired provisions that are permitted or have
attached a public organic document, except that, in either case,
provisions that would not be required to be included in a restated
public organic document may be omitted.
SOURCE: IC 23-1-38.5-14; (06)IN1306.1.16. -->
SECTION 16. IC 23-1-38.5-14 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 14. (a) Whenever a
domestic
business corporation filing entity has adopted and approved,
in the manner required by this chapter, a plan of entity conversion
providing for the
corporation converting entity to be converted to a
foreign
other entity, articles of charter surrender must be executed on
behalf of the
other corporation converting entity by any officer or
other duly authorized representative. The articles of charter surrender
must set forth:
(1) the name of the
corporation; converting entity;
(2) a statement that the articles of charter surrender are being filed
in connection with the conversion of the
corporation domestic
entity to a foreign
other entity;
(3) a statement that the conversion was duly approved by the
shareholders
or interest holders in the manner required by this
chapter and the articles of incorporation
if the converting entity
is a domestic corporation or the organic laws of the
converting entity and, if applicable, section 10(j) of this
chapter if the converting entity is a domestic other entity;
(4) the jurisdiction under the laws of which the surviving entity
will be organized; and
(5) if the surviving entity will not be a nonfiling filing entity, the
address of its executive office immediately after the conversion.
(b) The articles of charter surrender must be delivered by the
corporation converting entity to the secretary of state for filing. The
articles of charter surrender take effect on the effective time provided
in IC 23-1-18-4.
SOURCE: IC 23-1-38.5-15; (06)IN1306.1.17. -->
SECTION 17. IC 23-1-38.5-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 15. (a) When a
conversion under this section in which the surviving entity is a
domestic business corporation or domestic other entity becomes
effective:
(1) the title to all real and personal property, both tangible and
intangible, of the converting entity remains in the surviving entity
without reversion or impairment;
(2) the liabilities of the converting entity remain the liabilities of
the surviving entity;
(3) an action or proceeding pending against the converting entity
continues against the surviving entity as if the conversion had not
occurred;
(4) in the case of a surviving entity that is a filing entity, the
articles of conversion
or and the articles of incorporation or
public organic document attached to the articles of conversion
constitute the articles of incorporation or public organic document
of the surviving entity;
(5) in the case of a surviving entity that is
not a
nonfiling filing
entity, the private organic document provided for in the plan of
conversion constitutes the private organic document of the
surviving entity;
(6) the
share or interests shares, interests, other securities,
obligations, or rights to acquire shares, interests, or other
securities of the converting entity are reclassified into shares,
interests, other securities, obligations, rights to acquire shares,
interests, or
their other securities
of the surviving entity, or into
cash or other property in accordance with the plan of conversion,
and the shareholders or interest holders of the converting entity
are entitled only to the rights provided in the plan of conversion
and to any rights they may have under
IC 23-1-40; the organic
law of the converting entity; and
(7) the surviving entity is considered for all purposes of the laws
of Indiana to:
(A) be a domestic business corporation or domestic other
entity; for all purposes;
(B) be the same corporation or other entity without
interruption as the converting entity that existed before the
conversion; and
(C) have been incorporated or otherwise organized on the date
that the converting entity was originally incorporated or
organized; and
(8) unless otherwise agreed in writing, for all purposes of the
laws of Indiana, the converting entity is not required to wind
up its affairs or pay its liabilities and distribute its assets, and
the conversion does not constitute a dissolution of the
converting entity.
(b) When a conversion of a domestic business corporation to a
foreign other entity becomes effective, If the shareholders or interest
holders of a converting entity are entitled to receive dissenters'
rights upon conversion, the surviving entity is considered to:
(1) appoint the secretary of state as its agent for service of process
in a proceeding to enforce the rights of shareholders or interest
holders who exercise appraisal dissenters' rights in connection
with the conversion; and
(2) agree that it will promptly pay the amount, if any, to which the
shareholders or interest holders referred to in subdivision (1) are
entitled under IC 23-1-40. the organic law of the converting
entity.
(c) A shareholder or interest holder in a limited liability entity
that is a converting entity who becomes subject to owner liability for
some or all of the debts, obligations, or liabilities of the surviving entity
is personally liable only for those debts, obligations, or liabilities of the
surviving entity that arise after the effective time of the articles of
entity conversion.
(d) The owner liability of an interest holder in an other unlimited
liability entity that is a converting entity that converts to a domestic
business corporation limited liability entity is as follows:
(1) The conversion does not discharge any owner liability under
the organic law of the other converting entity to the extent that
any such owner liability arose before the effective time of the
articles of entity conversion.
(2) The interest holder does not have owner liability under the
organic law of the other surviving entity for any debt, obligation,
or liability of the corporation surviving entity that arises after the
effective time of the articles of entity conversion.
(3) The provisions of the organic law of the other converting
entity continue to apply to the collection or discharge of any
owner liability preserved by subdivision (1), as if the conversion
had not occurred and the surviving entity were still the converting
entity.
(4) The interest holder has whatever rights of contribution from
other interest holders are provided by the organic law of the other
converting entity with respect to any owner liability preserved by
subdivision (1), as if the conversion had not occurred and the
surviving entity were still the converting entity.
SOURCE: IC 23-1-38.5-16; (06)IN1306.1.18. -->
SECTION 18. IC 23-1-38.5-16 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 16. (a) Unless
otherwise provided in a plan of entity conversion of a domestic
business corporation, entity, after the plan has been adopted and
approved as required by this chapter, and at any time before the entity
conversion becomes effective, the plan of entity conversion may be
abandoned by the board of directors governing or managing body or
person of the converting entity without action by the shareholders or
interest holders of the converting entity.
(b) If an entity conversion is abandoned after articles of entity
conversion or articles of charter surrender have been filed with the
secretary of state but before the entity conversion becomes effective,
a statement that the entity conversion has been abandoned under this
section, executed by an officer or authorized representative, must be
delivered to the secretary of state for filing before the effective date of
the entity conversion. Upon filing, the statement takes effect and the
entity conversion is considered abandoned and shall not become
effective.
SOURCE: IC 23-1-49-4; (06)IN1306.1.19. -->
SECTION 19. IC 23-1-49-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 4. (a) A foreign
corporation authorized to transact business in Indiana must obtain an
amended certificate of authority from the secretary of state if it:
changes:
(1)
changes its corporate name;
(2)
changes the period of its duration;
or
(3)
changes the state or country of its incorporation;
or
(4) converts to a different form of entity.
(b) The requirements of section 3 of this chapter for obtaining an
original certificate of authority apply to obtaining an amended
certificate under this section.
SOURCE: IC 23-1-54-3; (06)IN1306.1.20. -->
SECTION 20. IC 23-1-54-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 3. (a) The Indiana
corporate business law survey commission is established for the
purpose of considering recommendations to the general assembly, from
time to time, concerning amendments to the Indiana business
corporation law this article, IC 23-17, or any other corporation, limited
liability company, or partnership laws, or new or additional legislation
affecting corporations, limited liability companies, partnerships, or
other business entities (domestic or foreign) authorized to do business
or doing business in Indiana.
(b) The commission consists of fourteen (14) members, appointed
by the governor, who shall serve without compensation and without
reimbursement for expenses. The secretary of state also shall serve as
an ex officio member.
(c) The commission shall conduct its proceedings and affairs
according to such rules as it may prescribe.
(d) The commission may publish official comments.
SOURCE: IC 23-4-1-54; (06)IN1306.1.21. -->
SECTION 21. IC 23-4-1-54 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2006]: Sec. 54. (a) As used in this section, "other entity" has the
meaning set forth in IC 23-1-38.5-1.
(b) A domestic corporation, domestic other entity, foreign
corporation, or foreign other entity may convert to a domestic
partnership under IC 23-1-38.5.
(c) A domestic partnership may convert to a domestic
corporation, domestic other entity, foreign corporation, or foreign
other entity under IC 23-1-38.5.
SOURCE: IC 23-16-3-5; (06)IN1306.1.22. -->
SECTION 22. IC 23-16-3-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 5. (a) Each certificate
required or permitted to be filed in the office of the secretary of state
under this article shall be executed in the following manner:
(1) An initial certificate of limited partnership must be signed by
all general partners.
(2) A certificate of amendment or restatement must be signed by
at least one (1) general partner and by each other general partner
designated in the certificate as a new general partner; however, if
there are no general partners a certificate of amendment or
restatement must be signed by each new general partner as
designated in the certificate.
(3) A certificate of cancellation must be signed by all general
partners; however, if there is no general partner, a certificate of
cancellation must be signed by a majority in interest of the limited
partners.
(b) Any person may sign a certificate, a partnership agreement, or
an amendment to a certificate or partnership agreement by an attorney
in fact. Powers of attorney relating to the signing of a certificate, a
partnership agreement, or an amendment to a certificate or partnership
agreement by an attorney in fact need not be sworn to, verified, or
acknowledged, or signed in the presence of a notary public, and need
not be filed with the secretary of state, but must be retained among the
records of the partnership. A power of attorney may be included in the
partnership agreement and need not be a separate document.
(c) The execution of a certificate by any person constitutes an oath
or affirmation under the penalties of perjury that to the best of the
person's knowledge and belief the statements made in the certificate are
true.
SOURCE: IC 23-16-3-14; (06)IN1306.1.23. -->
SECTION 23. IC 23-16-3-14 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2006]: Sec. 14. (a) As used in this section,
"other entity" has the meaning set forth in IC 23-1-38.5-1.
(b) A domestic corporation, domestic other entity, foreign
corporation, or foreign other entity may convert to a domestic
limited partnership under IC 23-1-38.5.
(c) A domestic limited partnership may convert to a domestic
corporation, domestic other entity, foreign corporation, or foreign
other entity under IC 23-1-38.5.
SOURCE: IC 23-17-1-3; (06)IN1306.1.24. -->
SECTION 24. IC 23-17-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 3. Official comments
may be published by the Indiana corporate business law survey
commission and, after publication, the comments may be consulted by
the courts to determine the underlying reasons, purposes, and policies
of this article and may be used as a guide in this article's construction
and application.
SOURCE: IC 23-17-18-1; (06)IN1306.1.25. -->
SECTION 25. IC 23-17-18-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 1. (a) A board of
directors may amend or repeal a corporation's bylaws unless:
(1) articles of incorporation;
(2) bylaws; or
(3) this article;
provide otherwise, subject to approval required under IC 23-17-17-1.
However, until the directors have been chosen, the incorporators have
power to amend or repeal the bylaws. This section is subject to the
class voting rules under section 2 of this chapter.
(b) The corporation must provide notice of any meeting of directors
at which an amendment is to be approved. The notice must do the
following:
(1) Be in accordance with IC 23-17-19-3. IC 23-17-15-3.
(2) State that the purpose of the meeting is to consider a proposed
amendment to the bylaws.
(3) Contain or be accompanied by a copy or summary of the
amendment or state the general nature of the amendment.
SOURCE: IC 23-18-1-7; (06)IN1306.1.26. -->
SECTION 26. IC 23-18-1-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 7. "Distribution" means
a direct or an indirect transfer of money or other property or the
incurrence or the transfer of indebtedness by a limited liability
company to or for the benefit of its members in respect of their interests
in the limited liability company. A distribution may be in the form of
a declaration or payment of a dividend, purchase, redemption, or other
acquisition of an interest, a distribution of indebtedness, or otherwise.
The term does not include:
(1) amounts constituting reasonable compensation for past or
present services or reasonable payments made in the ordinary
course of business under a bona fide retirement plan or other
benefit program; or
(2) the making of or payment or performance upon a bona
fide guaranty or similar arrangement by a corporation to or
for the benefit of its shareholders.
However, the failure of an amount to satisfy subdivision (1), or of
a payment or performance to satisfy subdivision (2), is not
determinative of whether the amount, payment, or performance is
a distribution.
SOURCE: IC 23-18-4-6; (06)IN1306.1.27. -->
SECTION 27. IC 23-18-4-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 6. (a) The initial
operating agreement must be agreed to by all persons who are members
at the time the initial agreement is accepted.
(b) An amendment to an oral operating agreement must be approved
by the unanimous consent of all members.
(c) An amendment to a written operating agreement must be in
writing and must, unless otherwise provided in the operating agreement
before the amendment, be approved by the unanimous consent of all
members.
(d) A copy of any written amendment to an operating agreement
must be delivered to each member who did not consent to the
amendment and to each assignee who has not been admitted as a
member.
(e) A person may sign articles of organization, an operating
agreement, or an amendment to articles of organization or an
operating agreement as an attorney in fact. A power of attorney
relating to the signing of a document under this subsection by an
attorney in fact may but is not required to be:
(1) sworn to, verified, or acknowledged;
(2) signed in the presence of a notary public;
(3) filed with the secretary of state; or
(4) included in another written agreement.
However, the power of attorney must be retained in the records of
the limited liability company.
SOURCE: IC 23-18-4-8; (06)IN1306.1.28. -->
SECTION 28. IC 23-18-4-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 8. (a) A limited liability
company must keep at its principal office the following records and
information:
(1) A list with the full name and last known mailing address of
each member and manager, if any, of the limited liability
company from the date of organization.
(2) A copy of the articles of organization and all amendments.
(3) Copies of the limited liability company's federal, state, and
local income tax returns and financial statements, if any, for the
three (3) most recent years, or if the returns and statements were
not prepared, copies of the information and statements provided
to or that should have been provided to the members to enable
them to prepare their federal, state, and local tax returns for the
same period.
(4) Copies of any written operating agreements and all
amendments and copies of any written operating agreements no
longer in effect.
(5) Unless otherwise set forth in a written operating agreement, a
writing setting out the following:
(A) The amount of cash, if any, and a statement of the agreed
value of other property or services contributed by each
member and the times at which or events upon the happening
of which any additional contributions agreed to be made by
each member are to be made.
(B) The events, if any, upon the happening of which the
limited liability company is to be dissolved and its affairs
wound up.
(C) Other writings, if any, required by the operating
agreement.
(b) A member may, at the member's own expense, inspect and copy
the limited liability company records described in subsection (a)
where the records are located upon reasonable request, during ordinary
business hours if the member gives the limited liability company
written notice of the member's request at least five (5) business
days before the date on which the member wishes to inspect and
copy the records.
(c) Unless greater rights of access to records or other
information are provided in a written operating agreement,
members or managers, if any, shall give to the extent the circumstances
allow just, reasonable, true, and full information of all things affecting
the members to any member and or to the legal representative of any
deceased member or of any member under legal disability upon
reasonable demand for any purpose reasonably related to a
member's interest as a member of the limited liability company.
(d) If a limited liability company is managed by one (1) or more
managers, a member or the legal representative of a deceased
member or a member under a legal disability may obtain
information under subsection (c) only if:
(1) the member makes the request at least five (5) business
days before the date on which member wishes to obtain the
information;
(2) the member makes the request in good faith and for a
proper purpose;
(3) the member describes with reasonable particularity the
member's purpose and the information that the member
wishes to obtain; and
(4) the information is directly connected to the member's
purpose.
(d) (e) Failure of the limited liability company to keep or maintain
the records or information required by this section is not grounds for
imposing liability on any member for the debts and obligations of the
limited liability company.
SOURCE: IC 23-18-5-5; (06)IN1306.1.29. -->
SECTION 29. IC 23-18-5-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 5. (a) Unless otherwise
provided in a written operating agreement, a limited liability company
existing under this article on or before June 30, 1999, is governed by
this section.
(b) Upon the occurrence of an event of dissociation under
IC 23-18-6-5 that does not cause dissolution, a dissociating member is
entitled to receive:
(1) any distribution that the member is entitled to under this
article or the operating agreement; and
(2) unless otherwise provided in the operating agreement, within
a reasonable time after dissociation, the fair value of the member's
interest in the limited liability company as of the date of
dissociation based on the member's right to share in distributions
from the limited liability company, less a distribution received
under subdivision (1).
SOURCE: IC 23-18-5-5.1; (06)IN1306.1.30. -->
SECTION 30. IC 23-18-5-5.1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 5.1. (a) A limited
liability company formed under this article after June 30, 1999, is
governed by this section.
(b) Upon the occurrence of an event of dissociation under
IC 23-18-6-5, a dissociating member is entitled to receive:
(1) any distribution that the member is entitled to under this
article or the operating agreement; and
(2) unless otherwise provided in the operating agreement, within
a reasonable time after dissociation, the fair value of the member's
interest in the limited liability company as of the date of
dissociation based on the member's right to share in distributions
from the limited liability company, less a distribution received
under subdivision (1).
SOURCE: IC 23-18-9-1.1; (06)IN1306.1.31. -->
SECTION 31. IC 23-18-9-1.1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 1.1. (a) A limited
liability company formed under this article after June 30, 1999, is
governed by this section.
(b) A limited liability company is dissolved and the limited liability
company's affairs must be wound up when the first of the following
occurs:
(1) At the time or on the occurrence of events specified in writing
in the articles of organization or operating agreement.
(2) If there is one (1) class or group of members, written consent
of two-thirds (2/3) in interest of the members or, if there is more
than one (1) class or group of members, written consent of
two-thirds (2/3) in interest of each class or group of members.
(3) Entry of a decree of judicial dissolution under section 2 of this
chapter.
(c) A limited liability company is dissolved and the limited liability
company's affairs must be wound up if there are no members. However,
this subsection does not apply if, under a provision in the operating
agreement, not more than ninety (90) days after the occurrence of the
event that caused the last remaining member to cease to be a member,
either:
(1) the personal representative of the last remaining member
agrees in writing:
(1) (A) to continue the business of the limited liability
company; and
(2) (B) to the admission of the personal representative or the
personal representative's nominee or designee to the limited
liability company as a member; or
(2) a member is admitted to the limited liability company in
the manner provided for in the operating agreement
specifically for the admission of a member to the limited
liability company after the last remaining member ceases to
be a member;
effective as of the time of the event that caused the last remaining
member to cease to be a member.
SOURCE: IC 23-18-9-7.5; (06)IN1306.1.32. -->
SECTION 32. IC 23-18-9-7.5 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2006]:
Sec. 7.5. (a) A limited liability
company may revoke its dissolution within one hundred twenty
(120) days of its effective date.
(b) Revocation of dissolution must be authorized in the same
manner as the dissolution was authorized unless the authorization
for dissolution permitted revocation of the dissolution by action of
the managers alone. If the authorization for dissolution permitted
revocation of the dissolution by action of the managers alone, the
managers may revoke the dissolution without member action.
(c) After the revocation of dissolution is authorized, the limited
liability company may revoke the dissolution by delivering to the
secretary of state for filing articles of dissolution and articles of
revocation of dissolution. The articles of revocation of distribution
must set forth the following:
(1) The name of the limited liability company.
(2) The effective date of the revocation of dissolution.
(3) The date that the revocation of dissolution was authorized.
(4) If applicable, a statement that the limited liability
company's members or managers revoked the dissolution.
(5) If the limited liability company's members or managers
revoked a dissolution authorized by the members or
managers, a statement that the authorization permitted
revocation of the dissolution by action of the members or of
the managers alone.
(d) Unless otherwise specified, a revocation of dissolution is
effective when articles of revocation of dissolution are filed.
(e) A revocation of dissolution relates back to and takes effect as
of the effective date of the dissolution. A limited liability whose
dissolution is revoked resumes carrying on business as if there had
been no dissolution.
SOURCE: IC 23-18-11-5; (06)IN1306.1.33. -->
SECTION 33. IC 23-18-11-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 5. (a) A foreign limited
liability company authorized to transact business in Indiana must obtain
an amended certificate of authority from the secretary of state if it
changes does any of the following:
(1)
Changes its name.
(2)
Changes the latest date, if any, upon which it is to dissolve.
(3)
Changes the state or country of its organization.
(4) Converts to a different form of entity.
(b) The requirements of section 4 of this chapter for obtaining an
original certificate of authority apply to obtaining an amended
certificate under this section.