Citations Affected:
IC 23-1-29-4.5
;
IC 23-1-38.5-13.
Synopsis: Shareholder consent and entity conversion. Conference committee report for ESB
383. For a corporation not registered under the Security and Exchange Act of 1934, permits
controlling shareholders to authorize a corporate action by their written consent without prior
notice or meeting if subsequent notice is provided to nonconsenting and nonvoting shareholders.
Allows for the use of electronic as well as written consents. Permits the conversion of a domestic
other entity, such as a limited partnership or limited liability company, to a different domestic
other entity. Permits the conversion of a foreign other entity to a different foreign other entity.
(This conference committee report removes provisions providing for the issuance of
funding agreements by life insurance companies under certain circumstances.)
Effective: July 1, 2003.
MR. SPEAKER:
Your Conference Committee appointed to confer with a like committee from the Senate
upon Engrossed House Amendments to Engrossed Senate Bill No. 383 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the Senate recede from its dissent from all House amendments and that
the Senate now concur in all House amendments to the bill and that the bill
be further amended as follows:
Page 1, delete everything after the enacting clause and insert the
following:
the information required by section 5 of this chapter must be given
to the shareholders at least ten (10) days before the action is taken.
(d) If not otherwise determined under section 7 of this chapter,
the record date for determining shareholders entitled to take action
without a meeting is the date the first shareholder signs the consent
under subsection (b).
(e) Each written consent must bear the date of signature of each
shareholder who signs the consent.
(f) A written consent is effective when, within sixty (60) days
after the earliest dated consent delivered to the corporation,
written consents signed by a sufficient number of shareholders to
take action are delivered to the corporation, unless the consent
specifies a different prior or subsequent effective date.
(g) For purposes of this subsection, "electronic consent" means
a telegram, cablegram, or other form of electronic transmission,
and "sign" or "signed" includes any manual, facsimile, conformed,
or electronic signature. The following apply to an electronic
consent:
(1) An electronic consent to an action to be taken may be
transmitted by a:
(A) shareholder; or
(B) person or persons authorized to act for a shareholder.
(2) The date that an electronic consent is transmitted is
considered to be the date on which the consent is written,
signed, and dated for purposes of this section if the electronic
consent is delivered with information from which the
corporation can determine:
(A) that the electronic consent was transmitted by a
shareholder or by a person or persons authorized to act for
a shareholder; and
(B) the date on which a shareholder or an authorized person
or persons transmitted the electronic consent.
(3) An electronic consent is considered to be delivered when:
(A) the consent is reproduced in paper form; and
(B) the paper form is delivered to the corporation.
(4) Notwithstanding subdivisions (1), (2), and (3), electronic
consents may be delivered to the corporation in any other
manner provided by resolution of the board of directors.
(5) A reliable reproduction of a consent in writing may be used
instead of the original writing for any and all purposes for
which the original writing could be used if the reproduction is
a complete reproduction of the entire original writing.
(h) Unless prior notice has been given to the shareholders as
provided in subsection (c), prompt notice of the taking of the
corporate action without a meeting by less than unanimous written
consent of the shareholders must be given to those shareholders,
including nonvoting shareholders entitled to notice under this
article, who:
(1) did not consent in writing; and
(2) would have been entitled to notice of the meeting if the
record date for the meeting was the date on which the first
shareholder's signed consent was delivered to the corporation
under subsection (f).
(i) A document required to be filed under any other section of
this article regarding the action consented to by the shareholders
under this section must state, instead of any statement required by
another section of this article concerning any vote of the
shareholders, that written consent has been given in accordance
with this section.
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 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
approved in accordance with the organic law of the other
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 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
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 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
foreign 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 entity by any officer or
authorized representative. 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 the jurisdiction under the laws of which the other
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 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.
(d) (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.
(e) (g) If the converting entity is 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.
(Reference is to ESB 383 as printed March 28, 2003.)
____________________________ ____________________________
Senator ClarkRepresentative Fry
Chairperson
____________________________ ____________________________
Senator BrodenRepresentative Ripley
Senate Conferees House Conferees