| 380 | | - | /4 in value of the creditors or class of creditors, or of the stockholders |
|---|
| 381 | | - | or class of stockholders of this corporation, as the case may be, agree to |
|---|
| 382 | | - | any compromise or arrangement and to any reorganization of this |
|---|
| 383 | | - | corporation as consequence of such compromise or arrangement, such |
|---|
| 384 | | - | compromise or arrangement and such reorganization shall, if |
|---|
| 385 | | - | sanctioned by the court to which the application has been made, be |
|---|
| 386 | | - | binding on all the creditors or class of creditors, or on all the |
|---|
| 387 | | - | stockholders or class of stockholders of this corporation, as the case |
|---|
| 388 | | - | may be, and also on this corporation"; or |
|---|
| 389 | | - | (B) for a nonstock corporation: "Whenever a compromise or |
|---|
| 390 | | - | arrangement is proposed between this corporation and its creditors or |
|---|
| 391 | | - | any class of them or between this corporation and its members or any |
|---|
| 392 | | - | class of them, any court of competent jurisdiction within the state of |
|---|
| 393 | | - | Kansas may, on the application in a summary way of this corporation or |
|---|
| 394 | | - | of any creditor or member thereof or on the application of any receiver |
|---|
| 395 | | - | or receivers appointed for this corporation under K.S.A. 17-6901, and |
|---|
| 396 | | - | amendments thereto, or on the application of trustees in dissolution or |
|---|
| 397 | | - | of any receiver or receivers appointed for this corporation under the |
|---|
| 398 | | - | provisions of K.S.A. 17-6808 and 17-6901, and amendments thereto, |
|---|
| 399 | | - | order a meeting of the creditors or class or creditors, or of the members |
|---|
| 400 | | - | of class of members of this corporation, as the case may be, to be |
|---|
| 401 | | - | summoned in such manner as the court directs. If a majority in number |
|---|
| 402 | | - | representing |
|---|
| 403 | | - | 3 |
|---|
| 404 | | - | /4 in value of the creditors or class of creditors, or of the |
|---|
| 405 | | - | members or class of members of this corporation, as the case may be, |
|---|
| 406 | | - | agree to any compromise or arrangement and to any reorganization of |
|---|
| 407 | | - | this corporation as consequence of such compromise or arrangement, |
|---|
| 408 | | - | such compromise or arrangement and such reorganization shall, if |
|---|
| 409 | | - | sanctioned by the court to which the application has been made, be |
|---|
| 410 | | - | binding on all the creditors or class of creditors, or on all the members |
|---|
| 411 | | - | or class of members, of this corporation, as the case may be, and also |
|---|
| 412 | | - | on this corporation"; |
|---|
| 413 | | - | (3) such provisions as may be desired granting to the holders of |
|---|
| 414 | | - | the stock of the corporation, or the holders of any class or series of a |
|---|
| 415 | | - | class thereof, the preemptive right to subscribe to any or all additional |
|---|
| 416 | | - | issues of stock of the corporation of any or all classes or series thereof, |
|---|
| 417 | | - | or to any securities of the corporation convertible into such stock. No |
|---|
| 418 | | - | stockholder shall have any preemptive right to subscribe to an |
|---|
| 419 | | - | additional issue of stock or to any security convertible into such stock |
|---|
| 420 | | - | unless, and except to the extent that, such right is expressly granted to |
|---|
| 421 | | - | such stockholder in the articles of incorporation. All such rights in |
|---|
| 422 | | - | existence on July 1, 1972, shall remain in existence unaffected by this |
|---|
| 423 | | - | paragraph unless and until changed or terminated by appropriate action H Sub for SENATE BILL No. 244—page 8 |
|---|
| 424 | | - | which that expressly provides for such change or termination; |
|---|
| 425 | | - | (4) provisions requiring for any corporate action, the vote of a |
|---|
| 426 | | - | larger portion of the stock or of any class or series thereof, or of any |
|---|
| 427 | | - | other securities having voting power, or a larger number of the |
|---|
| 428 | | - | directors, than is required by this code; |
|---|
| 429 | | - | (5) a provision limiting the duration of the corporation's existence |
|---|
| 430 | | - | to a specified date; otherwise, the corporation shall have perpetual |
|---|
| 431 | | - | existence; |
|---|
| 432 | | - | (6) a provision imposing personal liability for the debts of the |
|---|
| 433 | | - | corporation on its stockholders to a specified extent and upon specified |
|---|
| 434 | | - | conditions; otherwise, the stockholders of a corporation shall not be |
|---|
| 435 | | - | personally liable for the payment of the corporation's debts except as |
|---|
| 436 | | - | they may be liable by reason of their own conduct or acts; |
|---|
| 437 | | - | (7) the manner of adoption, alteration and repeal of bylaws; and |
|---|
| 438 | | - | (8) a provision eliminating or limiting the personal liability of a |
|---|
| 439 | | - | director to the corporation or its stockholders for monetary damages for |
|---|
| 440 | | - | breach of fiduciary duty as a director, provided except that such |
|---|
| 441 | | - | provision shall not eliminate or limit the liability of a director: (A) For |
|---|
| 442 | | - | any breach of the director's duty of loyalty to the corporation or its |
|---|
| 443 | | - | stockholders; (B) for acts or omissions not in good faith or which that |
|---|
| 444 | | - | involve intentional misconduct or a knowing violation of law; (C) |
|---|
| 445 | | - | under the provisions of K.S.A. 17-6424, and amendments thereto; or |
|---|
| 446 | | - | (D) for any transaction from which the director derived an improper |
|---|
| 447 | | - | personal benefit. No such provision shall eliminate or limit the liability |
|---|
| 448 | | - | of a director for any act or omission occurring prior to the date when |
|---|
| 449 | | - | such provision becomes effective. An amendment, repeal or |
|---|
| 450 | | - | elimination of such a provision shall not affect its application with |
|---|
| 451 | | - | respect to an act or omission by a director occurring before such |
|---|
| 452 | | - | amendment, repeal or elimination unless the provision provides |
|---|
| 453 | | - | otherwise at the time of such act or omission. All references in this |
|---|
| 454 | | - | subsection to a director also shall be deemed to refer to such other |
|---|
| 455 | | - | person or persons, if any, who, pursuant to a provision of the articles of |
|---|
| 456 | | - | incorporation in accordance with K.S.A. 17-6301(a), and amendments |
|---|
| 457 | | - | thereto, exercise or perform any of the powers or duties otherwise |
|---|
| 458 | | - | conferred or imposed upon the board of directors by this code. |
|---|
| 459 | | - | (c) It shall not be necessary to set forth in the articles of |
|---|
| 460 | | - | incorporation any of the powers conferred on corporations by this code. |
|---|
| 461 | | - | (d) Except for provisions included pursuant to subsections (a)(1), |
|---|
| 462 | | - | (a)(2), (a)(5), (a)(6), (b)(2), (b)(5), (b)(7) and (b)(8), and provisions |
|---|
| 463 | | - | included pursuant to subsection (a)(4) specifying the classes, number of |
|---|
| 464 | | - | shares and par value of shares a corporation, other than a nonstock |
|---|
| 465 | | - | corporation, is authorized to issue, any provision of the articles of |
|---|
| 466 | | - | incorporation may be made dependent upon facts ascertainable outside |
|---|
| 467 | | - | such instrument, provided that the manner in which such facts shall |
|---|
| 468 | | - | operate upon the provision is clearly and explicitly set forth in the |
|---|
| 469 | | - | provision. As used in this subsection, the term "facts" includes, but is |
|---|
| 470 | | - | not limited to, the occurrence of any event, including a determination or |
|---|
| 471 | | - | action by any person or body, including the corporation. |
|---|
| 472 | | - | (e) The articles of incorporation may shall not contain any |
|---|
| 473 | | - | provision that would impose liability on a stockholder for the attorney |
|---|
| 474 | | - | fees or expenses of the corporation or any other party in connection |
|---|
| 475 | | - | with an internal corporate claim, as defined in K.S.A. 2022 Supp. 17- |
|---|
| 476 | | - | 6015, and amendments thereto. |
|---|
| 477 | | - | Sec. 7. K.S.A. 2022 Supp. 17-6004 is hereby amended to read as |
|---|
| 478 | | - | follows: 17-6004. The term "Articles of incorporation," as used in this |
|---|
| 479 | | - | code, unless the context requires otherwise, includes not only the |
|---|
| 480 | | - | original articles of incorporation filed to create a corporation, which |
|---|
| 481 | | - | includes including the charter, articles of association and any other |
|---|
| 482 | | - | instrument by whatever name known which a corporation has been or H Sub for SENATE BILL No. 244—page 9 |
|---|
| 483 | | - | may be lawfully formed, but it also includes all other certificates, |
|---|
| 484 | | - | agreements of merger or consolidation, plans of reorganization or other |
|---|
| 485 | | - | instruments, howsoever however designated, which that are filed |
|---|
| 486 | | - | pursuant to K.S.A. 2022 Supp. 17-7910, and amendments thereto, or |
|---|
| 487 | | - | any other section of this code, the business entity transactions act, |
|---|
| 488 | | - | K.S.A. 2022 Supp. 17-78-101 to 17-78-607, and amendments thereto, |
|---|
| 489 | | - | or the business entity standard treatment act, K.S.A. 2022 Supp. 17- |
|---|
| 490 | | - | 7901 to 17-7939, and amendments thereto, and which that have the |
|---|
| 491 | | - | effect of amending or supplementing in some respect a corporation's |
|---|
| 492 | | - | original articles of incorporation. |
|---|
| 493 | | - | Sec. 8. K.S.A. 2022 Supp. 17-6008 is hereby amended to read as |
|---|
| 494 | | - | follows: 17-6008. (a) After the filing of the articles of incorporation, an |
|---|
| 495 | | - | organization meeting of the incorporator or incorporators, or of the |
|---|
| 496 | | - | board of directors if the initial directors were named in the articles of |
|---|
| 497 | | - | incorporation, shall be held, either within or without this state, at the |
|---|
| 498 | | - | call of a majority of the incorporators or directors, as the case may be, |
|---|
| 499 | | - | for the purposes of: |
|---|
| 500 | | - | (1) Adopting bylaws, unless a different provision is made in the |
|---|
| 501 | | - | articles of incorporation for the adoption thereof; |
|---|
| 502 | | - | (2) electing directors, if the meeting is of the incorporators, to |
|---|
| 503 | | - | serve or hold office until the first annual meeting of stockholders or |
|---|
| 504 | | - | until their successors are elected and qualify; |
|---|
| 505 | | - | (3) electing officers if the meeting is of the directors; |
|---|
| 506 | | - | (4) doing any other or further acts to perfect the organization of |
|---|
| 507 | | - | the corporation; and |
|---|
| 508 | | - | (5) transacting such other business as may come before the |
|---|
| 509 | | - | meeting. |
|---|
| 510 | | - | (b) The persons calling the meeting shall give to each other |
|---|
| 511 | | - | incorporator or director, as the case may be, at least two days' written |
|---|
| 512 | | - | notice thereof in writing or by electronic transmission by any usual |
|---|
| 513 | | - | means of communication, which and such notice shall state the time, |
|---|
| 514 | | - | place and purposes of the meeting as fixed by the persons calling it. |
|---|
| 515 | | - | Notice of the meeting need not be given to anyone who attends the |
|---|
| 516 | | - | meeting or who signs a waiver of waives notice either before or after |
|---|
| 517 | | - | the meeting. |
|---|
| 518 | | - | (c) (1) Unless otherwise restricted by the articles of |
|---|
| 519 | | - | incorporation: |
|---|
| 520 | | - | (A) Any action permitted to be taken at the organization meeting |
|---|
| 521 | | - | of the incorporators or directors, as the case may be, may be taken |
|---|
| 522 | | - | without a meeting if each incorporator or director, where there is more |
|---|
| 523 | | - | than one, or the sole incorporator or director where there is only one, |
|---|
| 524 | | - | signs an instrument which states the action so taken consents thereto in |
|---|
| 525 | | - | writing or by electronic transmission; and |
|---|
| 526 | | - | (B) a consent may be documented, signed and delivered in any |
|---|
| 527 | | - | manner permitted by section 1, and amendments thereto. |
|---|
| 528 | | - | (2) Any person, whether or not then an incorporator or director, |
|---|
| 529 | | - | may provide, whether through instruction to an agent or otherwise, that |
|---|
| 530 | | - | a consent to action will be effective at a future time, including a time |
|---|
| 531 | | - | determined upon the happening of an event, not later than 60 days |
|---|
| 532 | | - | after such instruction is given or such provision is made and such |
|---|
| 533 | | - | consent shall be deemed to have been given for purposes of this |
|---|
| 534 | | - | subsection at such effective time if such person is then an incorporator |
|---|
| 535 | | - | or director, as the case may be, and did not revoke the consent prior to |
|---|
| 536 | | - | such time. Any such consent shall be revocable prior to the time such |
|---|
| 537 | | - | consent becomes effective. |
|---|
| 538 | | - | (d) If any incorporator is not available to act, then any person for |
|---|
| 539 | | - | whom or on whose behalf the incorporator was acting directly or |
|---|
| 540 | | - | indirectly as employee or agent, may take action that such incorporator |
|---|
| 541 | | - | would have been authorized to take under this section or K.S.A. 17- H Sub for SENATE BILL No. 244—page 10 |
|---|
| 542 | | - | 6007, and amendments thereto, except that any instrument signed by |
|---|
| 543 | | - | such other person, or any record of the proceedings of a meeting in |
|---|
| 544 | | - | which such person participated, shall state that: |
|---|
| 545 | | - | (1) Such incorporator is not available and the reason therefor; |
|---|
| 546 | | - | (2) such incorporator was acting directly or indirectly as employee |
|---|
| 547 | | - | or agent for or on behalf of such person; and |
|---|
| 548 | | - | (3) such person's signature on such instrument or participation in |
|---|
| 549 | | - | such meeting is otherwise authorized and not wrongful. |
|---|
| 550 | | - | Sec. 9. K.S.A. 2022 Supp. 17-6010 is hereby amended to read as |
|---|
| 551 | | - | follows: 17-6010. (a) The board of directors of any corporation may |
|---|
| 552 | | - | adopt emergency bylaws, subject to repeal or change by action of the |
|---|
| 553 | | - | stockholders that, which notwithstanding any different contrary |
|---|
| 554 | | - | provision elsewhere in this code or in chapters 17 and 66 of the Kansas |
|---|
| 555 | | - | Statutes Annotated, and amendments thereto, or in the articles of |
|---|
| 556 | | - | incorporation or bylaws, shall be operative during any emergency |
|---|
| 557 | | - | resulting from an attack on the United States or on a locality in which |
|---|
| 558 | | - | where the corporation conducts its business or customarily holds |
|---|
| 559 | | - | meetings of its board of directors or its stockholders, or during any |
|---|
| 560 | | - | nuclear or atomic disaster, or during the existence of any catastrophe, |
|---|
| 561 | | - | including, but not limited to, an epidemic or pandemic, a declaration of |
|---|
| 562 | | - | a national emergency by the United States government or other similar |
|---|
| 563 | | - | emergency condition, as a result of which irrespective of whether a |
|---|
| 564 | | - | quorum of the board of directors or a standing committee thereof |
|---|
| 565 | | - | cannot can readily be convened for action. The emergency bylaws |
|---|
| 566 | | - | contemplated by this section may be adopted by the board of directors |
|---|
| 567 | | - | or, if a quorum cannot be readily convened for a meeting, by a majority |
|---|
| 568 | | - | of the directors present. The emergency bylaws may make any |
|---|
| 569 | | - | provision that may be practical and necessary for the circumstances of |
|---|
| 570 | | - | the emergency, including provisions that: |
|---|
| 571 | | - | (1) A meeting of the board of directors or a committee thereof |
|---|
| 572 | | - | may be called by any officer or director in such manner and under such |
|---|
| 573 | | - | conditions as shall be prescribed in the emergency bylaws; |
|---|
| 574 | | - | (2) the director or directors in attendance at the meeting, or any |
|---|
| 575 | | - | greater number fixed by the emergency bylaws, shall constitute a |
|---|
| 576 | | - | quorum; and |
|---|
| 577 | | - | (3) the officers or other persons designated on a list approved by |
|---|
| 578 | | - | the board of directors before the emergency, all in such order of priority |
|---|
| 579 | | - | and subject to such conditions and for such period of time, not longer |
|---|
| 580 | | - | than reasonably necessary after the termination of the emergency, as |
|---|
| 581 | | - | may be provided in the emergency bylaws or in the resolution |
|---|
| 582 | | - | approving the list, shall be deemed directors for such meeting, to the |
|---|
| 583 | | - | extent required to provide a quorum at any meeting of the board of |
|---|
| 584 | | - | directors. |
|---|
| 585 | | - | (b) The board of directors, either before or during any such |
|---|
| 586 | | - | emergency, may provide, and from time to time modify, lines of |
|---|
| 587 | | - | succession in the event that during such emergency any or all officers |
|---|
| 588 | | - | or agents of the corporation shall be rendered incapable of discharging |
|---|
| 589 | | - | their duties for any reason. |
|---|
| 590 | | - | (c) The board of directors, either before or during any such |
|---|
| 591 | | - | emergency, may change the head office or designate several alternative |
|---|
| 592 | | - | head offices or regional offices, or authorize the offices so to do, |
|---|
| 593 | | - | effective in the emergency. |
|---|
| 594 | | - | (d) No officer, director or employee acting in accordance with any |
|---|
| 595 | | - | emergency bylaws shall be liable except for willful misconduct. |
|---|
| 596 | | - | (e) To the extent not inconsistent with any emergency bylaws so |
|---|
| 597 | | - | adopted, the bylaws of the corporation shall remain in effect during any |
|---|
| 598 | | - | emergency, and upon its termination the emergency bylaws shall cease |
|---|
| 599 | | - | to be operative. |
|---|
| 600 | | - | (f) Unless otherwise provided in emergency bylaws, notice of any H Sub for SENATE BILL No. 244—page 11 |
|---|
| 601 | | - | meeting of the board of directors during such an emergency may be |
|---|
| 602 | | - | given only to such of the directors as it may be feasible to reach at the |
|---|
| 603 | | - | time and by such means as may be feasible at the time, including |
|---|
| 604 | | - | publication or radio. |
|---|
| 605 | | - | (g) To the extent required to constitute a quorum at any meeting of |
|---|
| 606 | | - | the board of directors during such an emergency, and unless otherwise |
|---|
| 607 | | - | provided in emergency bylaws, the officers of the corporation who are |
|---|
| 608 | | - | present shall be deemed, in order of rank and within the same rank in |
|---|
| 609 | | - | order of seniority, directors for such meeting. |
|---|
| 610 | | - | (h) Nothing contained in this section shall be deemed exclusive of |
|---|
| 611 | | - | any other provisions for emergency powers consistent with other |
|---|
| 612 | | - | sections of this code which that have been or may be adopted by |
|---|
| 613 | | - | corporations created under the provisions of this code. |
|---|
| 614 | | - | (i) During any emergency condition of a type described in |
|---|
| 615 | | - | subsection (a), the board of directors or, if a quorum cannot be readily |
|---|
| 616 | | - | convened for a meeting, a majority of the directors present may: |
|---|
| 617 | | - | (1) Take any action that the board determines to be practical and |
|---|
| 618 | | - | necessary to address the circumstances of such emergency condition |
|---|
| 619 | | - | with respect to a meeting of stockholders of the corporation |
|---|
| 620 | | - | notwithstanding any provision to the contrary in this code or in the |
|---|
| 621 | | - | articles of incorporation or bylaws, including, but not limited to: |
|---|
| 622 | | - | (A) Postponing any such meeting to a later time or date, with the |
|---|
| 623 | | - | record date for determining the stockholders entitled to notice of, and |
|---|
| 624 | | - | to vote at, such meeting applying to the postponed meeting irrespective |
|---|
| 625 | | - | of K.S.A. 17-6503, and amendments thereto; and |
|---|
| 626 | | - | (B) with respect to a corporation subject to the reporting |
|---|
| 627 | | - | requirements of 15 U.S.C. §§ 78m(a) or 78o(d) and the rules and |
|---|
| 628 | | - | regulations promulgated thereunder, notifying stockholders of any |
|---|
| 629 | | - | postponement or a change of the place of the meeting, or a change to |
|---|
| 630 | | - | hold the meeting solely by means of remote communication, solely by a |
|---|
| 631 | | - | document publicly filed by the corporation with the securities and |
|---|
| 632 | | - | exchange commission pursuant to 15 U.S.C. §§ 78m, 78n or 78o(d) |
|---|
| 633 | | - | and the rules and regulations promulgated thereunder; and |
|---|
| 634 | | - | (2) with respect to any dividend that has been declared as to |
|---|
| 635 | | - | which the record date has not occurred, change each of the record date |
|---|
| 636 | | - | and payment date to a later date or dates, if the changed payment date |
|---|
| 637 | | - | is not more than 60 days after the record date as changed. In either |
|---|
| 638 | | - | case, the corporation must give notice of such change to stockholders |
|---|
| 639 | | - | as promptly as practicable thereafter, and in any event before the |
|---|
| 640 | | - | record date then in effect, and such notice, in the case of a corporation |
|---|
| 641 | | - | subject to the reporting requirements of 15 U.S.C. §§ 78m(a) or 78o(d) |
|---|
| 642 | | - | and the rules and regulations promulgated thereunder, may be given |
|---|
| 643 | | - | solely by a document publicly filed with the securities and exchange |
|---|
| 644 | | - | commission pursuant to 15 U.S.C. §§ 78m, 78n or 78o(d) and the rules |
|---|
| 645 | | - | and regulations promulgated thereunder. No person shall be liable, and |
|---|
| 646 | | - | no meeting of stockholders shall be postponed or voided, for the failure |
|---|
| 647 | | - | to make a stocklist available pursuant to K.S.A. 17-6509, and |
|---|
| 648 | | - | amendments thereto, if it was not practicable to allow inspection |
|---|
| 649 | | - | during any such emergency condition. |
|---|
| 650 | | - | Sec. 10. K.S.A. 2022 Supp. 17-6011 is hereby amended to read as |
|---|
| 651 | | - | follows: 17-6011. (a) Any civil action to interpret, apply, enforce or |
|---|
| 652 | | - | determine the validity of the provisions of the following may be |
|---|
| 653 | | - | brought in the district court, except to the extent that a statute confers |
|---|
| 654 | | - | exclusive jurisdiction on a court, agency or tribunal other than the |
|---|
| 655 | | - | district court: |
|---|
| 656 | | - | (1) The articles of incorporation or the bylaws of a corporation; |
|---|
| 657 | | - | (2) any instrument, document or agreement: |
|---|
| 658 | | - | (A) By which a corporation creates or sells, or offers to create or |
|---|
| 659 | | - | sell, any of its stock, or any rights or options respecting its stock; H Sub for SENATE BILL No. 244—page 12 |
|---|
| 660 | | - | (B) to which a corporation and one or more holders of its stock |
|---|
| 661 | | - | are parties, and pursuant to which any such holder or holders sell or |
|---|
| 662 | | - | offer to sell any such stock; or |
|---|
| 663 | | - | (C) by which a corporation agrees to sell, lease or exchange any |
|---|
| 664 | | - | of its property or assets, and such instrument, document or agreement |
|---|
| 665 | | - | provides that one or more holders of its stock approve of or consent to |
|---|
| 666 | | - | such sale, lease or exchange; |
|---|
| 667 | | - | (3) any written restrictions on the transfer, registration of transfer |
|---|
| 668 | | - | or ownership of securities under K.S.A. 17-6426, and amendments |
|---|
| 669 | | - | thereto; |
|---|
| 670 | | - | (4) any proxy under K.S.A. 17-6502 or 17-6505, and amendments |
|---|
| 671 | | - | thereto; |
|---|
| 672 | | - | (5) any voting trust or other voting agreement under K.S.A. 17- |
|---|
| 673 | | - | 6508, and amendments thereto; |
|---|
| 674 | | - | (6) any agreement, certificate of merger or consolidation, or |
|---|
| 675 | | - | certificate of ownership and merger governed by K.S.A. 17-6701 |
|---|
| 676 | | - | through 17-6703 or 17-6705 through 17-6708, and amendments |
|---|
| 677 | | - | thereto; |
|---|
| 678 | | - | (7) any certificate of conversion under K.S.A. 17-6713, and |
|---|
| 679 | | - | amendments thereto; or |
|---|
| 680 | | - | (8) any other instrument, document, agreement or certificate |
|---|
| 681 | | - | required by any provision of this code. |
|---|
| 682 | | - | (b) Any civil action to interpret, apply or enforce any provision of |
|---|
| 683 | | - | this code may be brought in the district court. |
|---|
| 684 | | - | (c) This section shall be part of and supplemental to article 60 of |
|---|
| 685 | | - | chapter 17 of the Kansas Statutes Annotated, and amendments thereto. |
|---|
| 686 | | - | Sec. 11. K.S.A. 2022 Supp. 17-6014 is hereby amended to read as |
|---|
| 687 | | - | follows: 17-6014. (a) Except as otherwise provided in subsections (b) |
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| 688 | | - | and (c), the provisions of the Kansas general corporation code shall |
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| 689 | | - | apply to nonstock corporations in the manner specified in this |
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| 690 | | - | subsection: |
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| 691 | | - | (1) All references to stockholders of the corporation shall be |
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| 692 | | - | deemed to refer to members of the corporation; |
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| 693 | | - | (2) all references to the board of directors of the corporation shall |
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| 694 | | - | be deemed to refer to the governing body of the corporation; |
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| 695 | | - | (3) all references to directors or to members of the board of |
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| 696 | | - | directors of the corporation shall be deemed to refer to members of the |
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| 697 | | - | governing body of the corporation; and |
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| 698 | | - | (4) all references to stock, capital stock, or shares thereof of a |
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| 699 | | - | corporation authorized to issue capital stock shall be deemed to refer to |
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| 700 | | - | memberships of a nonprofit nonstock corporation and to membership |
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| 701 | | - | interests of any other nonstock corporation. |
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| 702 | | - | (b) Subsection (a) shall not apply to: |
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| 703 | | - | (1) K.S.A. 17-6002(a)(4), (b)(1) and (b)(2), 17-6009(a), 17-6301, |
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| 704 | | - | 17-6404, 17-6505, 17-6518, 17-6520(b), 17-6601, 17-6602, 17-6703, |
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| 705 | | - | 17-6705, 17-6706, 17-6707, 17-6708, 17-6801, 17-6805, 17-6805a, 17- |
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| 706 | | - | 7001, 17-7002, 17-7503(c)(4) and (d)(4), 17-7504, and 17-7505(c)(4) |
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| 707 | | - | and (d)(4) and 17-7514(c), and amendments thereto, and K.S.A. 2022 |
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| 708 | | - | Supp. 17-6014, and amendments thereto, that apply to nonstock |
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| 709 | | - | corporations by their terms; |
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| 710 | | - | (2) K.S.A. 17-6002(e), the last sentence of 17-6009(b), 17-6401, |
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| 711 | | - | 17-6402, 17-6403, 17-6405, 17-6406, 17-6407(d), 17-6408, 17-6411, |
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| 712 | | - | 17-6412, 17-6413, 17-6414, 17-6415, 17-6416, 17-6417, 17-6418, 17- |
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| 713 | | - | 6501, 17-6502, 17-6503, 17-6504, 17-6506, 17-6509, 17-6512, 17- |
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| 714 | | - | 6521, 17-6603, 17-6604, 17-6701, 17-6702, 17-6803 and 17-6804, and |
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| 715 | | - | amendments thereto, and K.S.A. 2022 Supp. 17-6427, 17-6428, 17- |
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| 716 | | - | 6429 and 17-72a04, and amendments thereto; and |
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| 717 | | - | (3) articlearticles 72 and article 73 of chapter 17 of the Kansas |
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| 718 | | - | Statutes Annotated, and amendments thereto. H Sub for SENATE BILL No. 244—page 13 |
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| 719 | | - | (c) In the case of a nonprofit nonstock corporation, subsection (a) |
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| 720 | | - | shall not apply to: |
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| 721 | | - | (1) The sections and articles listed in subsection (b); |
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| 722 | | - | (2) K.S.A. 17-6002(b)(3), 17-6304(a)(2), 17-6507, 17-6508, 17- |
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| 723 | | - | 6712, 17-7503, 17-7505, and 17-7509 and 17-7511, and amendments |
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| 724 | | - | thereto, and K.S.A. 2022 Supp. 17-6011(a)(2) and (a)(3), and |
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| 725 | | - | amendments thereto; and |
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| 726 | | - | (3) article 64 of chapter 17 of the Kansas Statutes Annotated, and |
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| 727 | | - | amendments thereto, other than K.S.A. 17-6428 and 17-6429, and |
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| 728 | | - | amendments thereto, and K.S.A. 2022 Supp. 17-72a01 through 17- |
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| 729 | | - | 72a09, and amendments thereto. |
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| 730 | | - | (d) For purposes of the Kansas general corporation code: |
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| 731 | | - | (1) A "charitable nonstock corporation" is any nonprofit nonstock |
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| 732 | | - | corporation that is exempt from taxation under § 501(c)(3) of the |
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| 733 | | - | federal internal revenue code of 1986, 26 U.S.C. § 501(c)(3); |
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| 734 | | - | (2) a "membership interest" is, unless otherwise provided in a |
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| 735 | | - | nonstock corporation's articles of incorporation, a member's share of |
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| 736 | | - | the profits and losses of a nonstock corporation, or a member's right to |
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| 737 | | - | receive distributions of the nonstock corporation's assets, or both; |
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| 738 | | - | (3) a "nonprofit nonstock corporation" is a nonstock corporation |
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| 739 | | - | that does not have membership interests; and |
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| 740 | | - | (4) a "nonstock corporation" is any corporation organized under |
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| 741 | | - | the Kansas general corporation code that is not authorized to issue |
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| 742 | | - | capital stock. |
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| 743 | | - | Sec. 12. K.S.A. 2022 Supp. 17-6301 is hereby amended to read as |
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| 744 | | - | follows: 17-6301. (a) The business and affairs of every corporation |
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| 745 | | - | organized under this code shall be managed by or under the direction of |
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| 746 | | - | a board of directors, except as may be otherwise provided in this code |
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| 747 | | - | or in the articles of incorporation. If any such provision is made in the |
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| 748 | | - | articles of incorporation, the powers and duties conferred or imposed |
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| 749 | | - | upon the board of directors by this code shall be exercised or performed |
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| 750 | | - | to such extent and by such person or persons as shall be provided in the |
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| 751 | | - | articles of incorporation. |
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| 752 | | - | (b) The board of directors of a corporation shall consist of one or |
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| 753 | | - | more members, each of whom shall be a natural person. The number of |
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| 754 | | - | directors shall be fixed by, or in the manner provided in, the bylaws, |
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| 755 | | - | unless the articles of incorporation fixes the number of directors, in |
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| 756 | | - | which case a change in the number of directors shall be made only by |
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| 757 | | - | amendment of the articles. Directors need not be stockholders unless so |
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| 758 | | - | required by the articles of incorporation or the bylaws. The articles of |
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| 759 | | - | incorporation or bylaws may prescribe other qualifications for |
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| 760 | | - | directors. Each director shall hold office until such director's successor |
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| 761 | | - | is elected and qualified or until such director's earlier resignation or |
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| 762 | | - | removal. Any director may resign at any time upon notice given in |
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| 763 | | - | writing or by electronic transmission to the corporation. A resignation |
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| 764 | | - | is effective when the resignation is delivered unless the resignation |
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| 765 | | - | specifies a later effective date or an effective date determined upon the |
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| 766 | | - | happening of an event or events. A resignation which that is |
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| 767 | | - | conditioned upon the director failing to receive a specified vote for |
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| 768 | | - | reelection as a director may provide that it is irrevocable. A majority of |
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| 769 | | - | the total number of directors shall constitute a quorum for the |
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| 770 | | - | transaction of business unless the articles of incorporation or the |
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| 771 | | - | bylaws require a greater number. Unless the articles of incorporation |
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| 772 | | - | provide otherwise, the bylaws may provide that a number less than a |
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| 773 | | - | majority shall constitute a quorum which that in no case shall be less |
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| 774 | | - | than |
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| 775 | | - | 1 |
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| 776 | | - | /3 of the total number of directors except that when a board of one |
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| 777 | | - | director is authorized under this section, then one director shall |
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| 778 | | - | constitute a quorum. The vote of the majority of the directors present at |
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| 779 | | - | a meeting at which a quorum is present shall be the act of the board of H Sub for SENATE BILL No. 244—page 14 |
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| 780 | | - | directors unless the articles of incorporation or the bylaws shall require |
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| 781 | | - | a vote of a greater number. |
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| 782 | | - | (c) (1) All corporations incorporated prior to July 1, 2004, shall be |
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| 783 | | - | governed by subsection (c)(2), except that any such corporation may by |
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| 784 | | - | a resolution adopted by a majority of the whole board elect to be |
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| 785 | | - | governed by subsection (c)(3), in which case subsection (c)(2) shall not |
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| 786 | | - | apply to such corporation. All corporations incorporated on or after |
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| 787 | | - | July 1, 2004, shall be governed by subsection (c)(3). |
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| 788 | | - | (2) The board of directors may, by resolution passed by a majority |
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| 789 | | - | of the whole board, designate one or more committees, each committee |
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| 790 | | - | to consist of one or more of the directors of the corporation. The board |
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| 791 | | - | may designate one or more directors as alternate members of any |
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| 792 | | - | committee, who may replace any absent or disqualified member at any |
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| 793 | | - | meeting of the committee. The bylaws may provide that in the absence |
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| 794 | | - | or disqualification of a member of a committee, the member or |
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| 795 | | - | members present at any meeting and not disqualified from voting, |
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| 796 | | - | whether or not the member or members present constitute a quorum, |
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| 797 | | - | may unanimously appoint another member of the board of directors to |
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| 798 | | - | act at the meeting in the place of any such absent or disqualified |
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| 799 | | - | member. Any such committee, to the extent provided in the resolution |
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| 800 | | - | of the board of directors, or in the bylaws of the corporation, shall have |
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| 801 | | - | and may exercise all the powers and authority of the board of directors |
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| 802 | | - | in the management of the business and affairs of the corporation, and |
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| 803 | | - | may authorize the seal of the corporation to be affixed to all papers |
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| 804 | | - | which that may require it, but no such committee shall have the power |
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| 805 | | - | or authority in reference to: |
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| 806 | | - | (A) Amending the articles of incorporation, except that a |
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| 807 | | - | committee may, to the extent authorized in the resolution or resolutions |
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| 808 | | - | providing for the issuance of shares of stock adopted by the board of |
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| 809 | | - | directors as provided in K.S.A. 17-6401, and amendments thereto, fix |
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| 810 | | - | the designations and any of the preferences or rights of such shares |
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| 811 | | - | relating to dividends, redemption, dissolution, any distribution of assets |
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| 812 | | - | of the corporation or the conversion into, or the exchange of such |
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| 813 | | - | shares for, shares of any other class or classes or any other series of the |
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| 814 | | - | same or any other class or classes of stock of the corporation or fix the |
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| 815 | | - | number of shares of any series of stock or authorize the increase or |
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| 816 | | - | decrease of the shares of any series; |
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| 817 | | - | (B) adopting an agreement of merger or consolidation pursuant to |
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| 818 | | - | K.S.A. 17-6701 or 17-6702, and amendments thereto, recommending |
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| 819 | | - | to the stockholders the sale, lease or exchange of all or substantially all |
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| 820 | | - | of the corporation's property and assets, recommending to the |
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| 821 | | - | stockholders a dissolution of the corporation or a revocation of a |
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| 822 | | - | dissolution, or amending the bylaws of the corporation; or |
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| 823 | | - | (C) unless the resolution, bylaws or articles of incorporation |
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| 824 | | - | expressly so provides, no such committee shall have the power or |
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| 825 | | - | authority to declare a dividend, to authorize the issuance of stock or to |
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| 826 | | - | adopt a certificate of ownership and merger pursuant to K.S.A. 17- |
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| 827 | | - | 6703, and amendments thereto. |
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| 828 | | - | (3) The board of directors may designate one or more committees, |
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| 829 | | - | each committee to consist of one or more of the directors of the |
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| 830 | | - | corporation. The board may designate one or more directors as alternate |
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| 831 | | - | members of any committee, who may replace any absent or disqualified |
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| 832 | | - | member at any meeting of the committee. The bylaws may provide that |
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| 833 | | - | in the absence or disqualification of a member of a committee, the |
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| 834 | | - | member or members present at any meeting and not disqualified from |
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| 835 | | - | voting, whether or not such member or members constitute a quorum, |
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| 836 | | - | may unanimously appoint another member of the board of directors to |
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| 837 | | - | act at the meeting in the place of any such absent or disqualified |
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| 838 | | - | member. Any such committee, to the extent provided in the resolution H Sub for SENATE BILL No. 244—page 15 |
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| 839 | | - | of the board of directors, or in the bylaws of the corporation, shall have |
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| 840 | | - | and may exercise all the powers and authority of the board of directors |
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| 841 | | - | in the management of the business and affairs of the corporation, and |
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| 842 | | - | may authorize the seal of the corporation to be affixed to all papers |
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| 843 | | - | which that may require it, but no such committee shall have the power |
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| 844 | | - | or authority in reference to the following matters: |
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| 845 | | - | (A) Approving or adopting, or recommending to the stockholders, |
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| 846 | | - | any action or matter, other than the election or removal of directors, |
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| 847 | | - | expressly required by this code to be submitted to stockholders for |
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| 848 | | - | approval; or |
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| 849 | | - | (B) adopting, amending or repealing any bylaw of the corporation. |
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| 850 | | - | (4) Unless otherwise provided in the articles of incorporation, the |
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| 851 | | - | bylaws or the resolution of the board of directors designating the |
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| 852 | | - | committee, a committee may create one or more subcommittees, each |
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| 853 | | - | subcommittee to consist of one or more members of the committee, and |
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| 854 | | - | delegate to a subcommittee any or all of the powers and authority of the |
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| 855 | | - | committee. Except for references to subcommittees of committees in |
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| 856 | | - | this subsection, every reference in the code to a committee of the board |
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| 857 | | - | of directors or a member of a committee shall be deemed to include a |
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| 858 | | - | reference to a subcommittee or member of a subcommittee. |
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| 859 | | - | (5) A majority of the directors then serving on a committee of the |
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| 860 | | - | board of directors or a subcommittee of a committee shall constitute a |
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| 861 | | - | quorum for the transaction of business by the committee or |
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| 862 | | - | subcommittee unless the articles of incorporation, the bylaws, a |
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| 863 | | - | resolution of the board of directors or a resolution of a committee that |
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| 864 | | - | created the subcommittee requires a greater or lesser number, except |
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| 865 | | - | that in no case shall a quorum be less than |
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| 866 | | - | 1 |
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| 867 | | - | /3 of the directors then |
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| 868 | | - | serving on the committee or subcommittee. The vote of a majority of |
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| 869 | | - | the members of a committee or subcommittee present at a meeting at |
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| 870 | | - | which a quorum is present shall be the act of the committee or |
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| 871 | | - | subcommittee unless the articles of incorporation, the bylaws, a |
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| 872 | | - | resolution of the board of directors or a resolution of a committee that |
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| 873 | | - | created the subcommittee requires a greater number. |
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| 874 | | - | (d) The directors of any corporation organized under this code |
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| 875 | | - | may be divided into one, two or three classes by the articles of |
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| 876 | | - | incorporation or by an initial bylaw, or by a bylaw adopted by a vote of |
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| 877 | | - | the stockholders; the term of office of those of the first class to expire |
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| 878 | | - | at the first annual meeting held after such classification becomes |
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| 879 | | - | effective; of the second class one year thereafter; of the third class two |
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| 880 | | - | years thereafter; and at each annual election held after such |
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| 881 | | - | classification becomes effective, directors shall be chosen for a full |
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| 882 | | - | term, as the case may be, to succeed those whose terms expire. The |
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| 883 | | - | articles of incorporation or bylaw provision dividing the directors into |
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| 884 | | - | classes may authorize the board of directors to assign members of the |
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| 885 | | - | board already in office to such classes at the time such classification |
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| 886 | | - | becomes effective. The articles of incorporation may confer upon |
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| 887 | | - | holders of any class or series of stock the right to elect one or more |
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| 888 | | - | directors who shall serve for such term, and have such voting powers as |
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| 889 | | - | shall be stated in the articles of incorporation. The terms of office and |
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| 890 | | - | voting powers of the directors elected separately by the holders of any |
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| 891 | | - | class or series of stock may be greater than or less than those of any |
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| 892 | | - | other director or class of directors. In addition, the articles of |
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| 893 | | - | incorporation may confer upon one or more directors, whether or not |
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| 894 | | - | elected separately by the holders of any class or series of stock, voting |
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| 895 | | - | powers greater than or less than those of other directors. Any such |
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| 896 | | - | provision conferring greater or lesser voting power shall apply to |
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| 897 | | - | voting in any committee or subcommittee, unless otherwise provided in |
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| 898 | | - | the articles of incorporation or bylaws. If the articles of incorporation |
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| 899 | | - | provide that one or more directors shall have more or less than one vote H Sub for SENATE BILL No. 244—page 16 |
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| 900 | | - | per director on any matter, every reference in this code to a majority or |
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| 901 | | - | other proportion of the directors shall refer to a majority or other |
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| 902 | | - | proportion of the votes of the directors. |
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| 903 | | - | (e) A member of the board of directors, or a member of any |
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| 904 | | - | committee designated by the board of directors, shall, in the |
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| 905 | | - | performance of such member's duties, be fully protected in relying in |
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| 906 | | - | good faith upon the records of the corporation and upon such |
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| 907 | | - | information, opinions, reports or statements presented to the |
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| 908 | | - | corporation by any of the corporation's officers or employees, or |
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| 909 | | - | committees of the board of directors, or by any other person as to |
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| 910 | | - | matters the member reasonably believes are within such other person's |
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| 911 | | - | professional or expert competence and who has been selected with |
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| 912 | | - | reasonable care by or on behalf of the corporation. |
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| 913 | | - | (f) (1) Unless otherwise restricted by the articles of incorporation |
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| 914 | | - | or bylaws,: |
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| 915 | | - | (A) Any action required or permitted to be taken at any meeting of |
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| 916 | | - | the board of directors or of any committee thereof may be taken |
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| 917 | | - | without a meeting if all members of the board or committee, as the case |
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| 918 | | - | may be, consent thereto in writing or by electronic transmission, and |
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| 919 | | - | the writing or writings or electronic transmission or transmissions are |
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| 920 | | - | filed with the minutes of proceedings of the board or committee. Such |
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| 921 | | - | filing shall be in paper form if the minutes are maintained in paper form |
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| 922 | | - | and shall be in electronic form if the minutes are maintained in |
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| 923 | | - | electronic form; and |
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| 924 | | - | (B) a consent may be documented, signed and delivered in any |
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| 925 | | - | manner permitted by section 1, and amendments thereto. |
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| 926 | | - | (2) Any person, whether or not then a director, may provide, |
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| 927 | | - | whether through instruction to an agent or otherwise, that a consent to |
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| 928 | | - | action will be effective at a future time, including a time determined |
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| 929 | | - | upon the happening of an event, no later than 60 days after such |
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| 930 | | - | instruction is given or such provision is made and such consent shall be |
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| 931 | | - | deemed to have been given for purposes of this subsection at such |
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| 932 | | - | effective time so long as such person is then a director and did not |
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| 933 | | - | revoke the consent prior to such time. Any such consent shall be |
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| 934 | | - | revocable prior to its becoming effective such effective time. After an |
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| 935 | | - | action is taken, the consent or consents relating thereto shall be filed |
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| 936 | | - | with the minutes of the proceedings of the board of directors, or the |
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| 937 | | - | committee thereof, in the same paper or electronic form as the minutes |
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| 938 | | - | are maintained. |
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| 939 | | - | (g) Unless otherwise restricted by the articles of incorporation or |
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| 940 | | - | bylaws, the board of directors of any corporation organized under this |
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| 941 | | - | code may hold its meetings, and have an office or offices, outside of |
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| 942 | | - | this state. |
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| 943 | | - | (h) Unless otherwise restricted by the articles of incorporation or |
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| 944 | | - | bylaws, the board of directors shall have the authority to fix the |
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| 945 | | - | compensation of directors. |
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| 946 | | - | (i) Unless otherwise restricted by the articles of incorporation or |
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| 947 | | - | bylaws, members of the board of directors of any corporation, or any |
|---|
| 948 | | - | committee designated by the board, may participate in a meeting of |
|---|
| 949 | | - | such board, or committee by means of conference telephone or other |
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| 950 | | - | communications equipment by means of which all persons participating |
|---|
| 951 | | - | in the meeting can hear each other, and participation in a meeting |
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| 952 | | - | pursuant to this subsection shall constitute presence in person at the |
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| 953 | | - | meeting. |
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| 954 | | - | (j) The articles of incorporation of any nonstock corporation may |
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| 955 | | - | provide that less than |
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| 956 | | - | 1 |
|---|
| 957 | | - | /3 of the members of the governing body may |
|---|
| 958 | | - | constitute a quorum thereof and may otherwise provide that the |
|---|
| 959 | | - | business and affairs of the corporation shall be managed in a manner |
|---|
| 960 | | - | different from that provided in this section. Except as may be otherwise H Sub for SENATE BILL No. 244—page 17 |
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| 961 | | - | provided by the articles of incorporation, this section shall apply to |
|---|
| 962 | | - | such a corporation, and when so applied, all references to: |
|---|
| 963 | | - | (1) The board of directors, to members thereof and to stockholders |
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| 964 | | - | shall be deemed to refer to the governing body of the corporation, the |
|---|
| 965 | | - | members thereof and the members of the corporation, respectively; and |
|---|
| 966 | | - | (2) stock, capital stock or shares thereof shall be deemed to refer |
|---|
| 967 | | - | to memberships of a nonprofit nonstock corporation and to membership |
|---|
| 968 | | - | interests of any other nonstock corporation. |
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| 969 | | - | (k) (1) Any director or the entire board of directors may be |
|---|
| 970 | | - | removed, with or without cause, by the holders of a majority of the |
|---|
| 971 | | - | shares then entitled to vote at an election of directors, except as |
|---|
| 972 | | - | follows: |
|---|
| 973 | | - | (1)(A) Unless the articles of incorporation otherwise provides, in |
|---|
| 974 | | - | the case of a corporation whose board is classified as provided in |
|---|
| 975 | | - | subsection (d), stockholders may effect such removal only for cause; or |
|---|
| 976 | | - | (2)(B) in the case of a corporation having cumulative voting, if |
|---|
| 977 | | - | less than the entire board is to be removed, no director may be removed |
|---|
| 978 | | - | without cause if the votes cast against such director's removal would be |
|---|
| 979 | | - | sufficient to elect such director if then cumulatively voted at an election |
|---|
| 980 | | - | of the entire board of directors, or, if there be classes of directors, at an |
|---|
| 981 | | - | election of the class of directors of which such director is a part. |
|---|
| 982 | | - | (2) Whenever the holders of any class or series are entitled to elect |
|---|
| 983 | | - | one or more directors by the articles of incorporation, this subsection |
|---|
| 984 | | - | shall apply, in respect to the removal without cause of a director or |
|---|
| 985 | | - | directors so elected, to the vote of the holders of the outstanding shares |
|---|
| 986 | | - | of that class or series and not to the vote of the outstanding shares as a |
|---|
| 987 | | - | whole. |
|---|
| 988 | | - | Sec. 13. K.S.A. 2022 Supp. 17-6305 is hereby amended to read as |
|---|
| 989 | | - | follows: 17-6305. (a) A corporation shall have power to indemnify any |
|---|
| 990 | | - | person who was or is a party or is threatened to be made a party to any |
|---|
| 991 | | - | threatened, pending or completed action, suit or proceeding, whether |
|---|
| 992 | | - | civil, criminal, administrative or investigative, other than an action by |
|---|
| 993 | | - | or in the right of the corporation, by reason of the fact that the person is |
|---|
| 994 | | - | or was a director, officer, employee or agent of the corporation, or is or |
|---|
| 995 | | - | was serving at the request of the corporation as a director, officer, |
|---|
| 996 | | - | employee or agent of another corporation, partnership, joint venture, |
|---|
| 997 | | - | trust or other enterprise, against expenses, including attorney fees, |
|---|
| 998 | | - | judgments, fines and amounts paid in settlement actually and |
|---|
| 999 | | - | reasonably incurred by the person in connection with such action, suit |
|---|
| 1000 | | - | or proceeding if the person acted in good faith and in a manner the |
|---|
| 1001 | | - | person reasonably believed to be in or not opposed to the best interests |
|---|
| 1002 | | - | of the corporation, and, with respect to any criminal action or |
|---|
| 1003 | | - | proceeding, had no reasonable cause to believe the person's conduct |
|---|
| 1004 | | - | was unlawful. The termination of any action, suit or proceeding by |
|---|
| 1005 | | - | judgment, order, settlement, conviction, or upon a plea of nolo |
|---|
| 1006 | | - | contendere or its equivalent, shall not, of itself, create a presumption |
|---|
| 1007 | | - | that the person did not act in good faith and in a manner which that the |
|---|
| 1008 | | - | person reasonably believed to be in or not opposed to the best interests |
|---|
| 1009 | | - | of the corporation, and, with respect to any criminal action or |
|---|
| 1010 | | - | proceeding, had reasonable cause to believe that the person's conduct |
|---|
| 1011 | | - | was unlawful. |
|---|
| 1012 | | - | (b) A corporation shall have power to indemnify any person who |
|---|
| 1013 | | - | was or is a party or is threatened to be made a party to any threatened, |
|---|
| 1014 | | - | pending or completed action or suit by or in the right of the corporation |
|---|
| 1015 | | - | to procure a judgment in its favor by reason of the fact that the person |
|---|
| 1016 | | - | is or was a director, officer, employee or agent of the corporation, or is |
|---|
| 1017 | | - | or was serving at the request of the corporation as a director, officer, |
|---|
| 1018 | | - | employee or agent of another corporation, partnership, joint venture, |
|---|
| 1019 | | - | trust or other enterprise against expenses, including attorney fees, H Sub for SENATE BILL No. 244—page 18 |
|---|
| 1020 | | - | actually and reasonably incurred by the person in connection with the |
|---|
| 1021 | | - | defense or settlement of such action or suit if the person acted in good |
|---|
| 1022 | | - | faith and in a manner the person reasonably believed to be in or not |
|---|
| 1023 | | - | opposed to the best interests of the corporation and except that no |
|---|
| 1024 | | - | indemnification shall be made in respect of any claim, issue or matter |
|---|
| 1025 | | - | as to which such person shall have been adjudged to be liable to the |
|---|
| 1026 | | - | corporation unless and only to the extent that the district court or the |
|---|
| 1027 | | - | court in which where such action or suit was brought shall determine |
|---|
| 1028 | | - | upon application that, despite the adjudication of liability but in view of |
|---|
| 1029 | | - | all the circumstances of the case, such person is fairly and reasonably |
|---|
| 1030 | | - | entitled to indemnity for such expenses which that the district court or |
|---|
| 1031 | | - | such other court shall deem proper. |
|---|
| 1032 | | - | (c) (1) To the extent that a present or former director or officer of a |
|---|
| 1033 | | - | corporation has been successful on the merits or otherwise in defense |
|---|
| 1034 | | - | of any action, suit or proceeding referred to in subsections (a) and (b), |
|---|
| 1035 | | - | or in defense of any claim, issue or matter therein, such person shall be |
|---|
| 1036 | | - | indemnified against expenses, including attorney fees, actually and |
|---|
| 1037 | | - | reasonably incurred by such person in connection therewith with such |
|---|
| 1038 | | - | defense. For indemnification with respect to any act or omission |
|---|
| 1039 | | - | occurring after June 30, 2023, references to "officer" for purposes of |
|---|
| 1040 | | - | this subsection shall mean only an officer of the corporation who: |
|---|
| 1041 | | - | (A) Is or was the president, chief executive officer, chief operating |
|---|
| 1042 | | - | officer, chief financial officer, chief legal officer, controller, treasurer or |
|---|
| 1043 | | - | chief accounting officer of the corporation; or |
|---|
| 1044 | | - | (B) is or was identified in the corporation's public filings with the |
|---|
| 1045 | | - | United States securities and exchange commission because such |
|---|
| 1046 | | - | person is or was one of the most highly compensated executive officers |
|---|
| 1047 | | - | of the corporation. |
|---|
| 1048 | | - | (2) The corporation may indemnify any other person who is not a |
|---|
| 1049 | | - | present or former director or officer of the corporation against |
|---|
| 1050 | | - | expenses, including attorney fees, actually and reasonably incurred by |
|---|
| 1051 | | - | such person to the extent such person has been successful on the merits |
|---|
| 1052 | | - | or otherwise in defense of any action, suit or proceeding referred to in |
|---|
| 1053 | | - | subsections (a) and (b) or in defense of any claim, issue or matter |
|---|
| 1054 | | - | therein. |
|---|
| 1055 | | - | (d) Any indemnification under subsections (a) and (b), unless |
|---|
| 1056 | | - | ordered by a court, shall be made by the corporation only as authorized |
|---|
| 1057 | | - | in the specific case upon a determination that indemnification of the |
|---|
| 1058 | | - | present or former director, officer, employee or agent is proper in the |
|---|
| 1059 | | - | circumstances because the person has met the applicable standard of |
|---|
| 1060 | | - | conduct set forth in subsections (a) and (b). Such determination shall be |
|---|
| 1061 | | - | made, with respect to a person who is a director or officer of the |
|---|
| 1062 | | - | corporation at the time of such determination: |
|---|
| 1063 | | - | (1) By a majority vote of the directors who are not parties to such |
|---|
| 1064 | | - | action, suit or proceeding, even though less than a quorum; |
|---|
| 1065 | | - | (2) by a committee of such directors designated by majority vote |
|---|
| 1066 | | - | of such directors, even though less than a quorum; |
|---|
| 1067 | | - | (3) if there are no such directors, or if such directors so direct, by |
|---|
| 1068 | | - | independent legal counsel in a written opinion; or |
|---|
| 1069 | | - | (4) by the stockholders. |
|---|
| 1070 | | - | (e) Expenses, including attorney fees, incurred by an officer or |
|---|
| 1071 | | - | director of the corporation in defending any civil, criminal, |
|---|
| 1072 | | - | administrative or investigative action, suit or proceeding may be paid |
|---|
| 1073 | | - | by the corporation in advance of the final disposition of such action, |
|---|
| 1074 | | - | suit or proceeding upon receipt of an undertaking by or on behalf of |
|---|
| 1075 | | - | such director or officer to repay such amount if it shall ultimately be |
|---|
| 1076 | | - | determined that such person is not entitled to be indemnified by the |
|---|
| 1077 | | - | corporation as authorized in this section. Such expenses, including |
|---|
| 1078 | | - | attorney fees, incurred by former directors and officers or other H Sub for SENATE BILL No. 244—page 19 |
|---|
| 1079 | | - | employees and agents of the corporation or by persons serving at the |
|---|
| 1080 | | - | request of the corporation as directors, officers, employees or agents of |
|---|
| 1081 | | - | another corporation, partnership, joint venture, trust or other enterprise |
|---|
| 1082 | | - | may be so paid upon such terms and conditions, if any, as the |
|---|
| 1083 | | - | corporation deems appropriate. |
|---|
| 1084 | | - | (f) The indemnification and advancement of expenses provided |
|---|
| 1085 | | - | by, or granted pursuant to, the other subsections of this section shall not |
|---|
| 1086 | | - | be deemed exclusive of any other rights to which those seeking |
|---|
| 1087 | | - | indemnification or advancement of expenses may be entitled under any |
|---|
| 1088 | | - | bylaw, agreement, vote of stockholders or disinterested directors or |
|---|
| 1089 | | - | otherwise, both as to action in such person's official capacity and as to |
|---|
| 1090 | | - | action in another capacity while holding such office. A right to |
|---|
| 1091 | | - | indemnification or to advancement of expenses arising under a |
|---|
| 1092 | | - | provision of the articles of incorporation or a bylaw shall not be |
|---|
| 1093 | | - | eliminated or impaired by an amendment to or repeal or elimination of |
|---|
| 1094 | | - | the articles of incorporation or the bylaws after the occurrence of the |
|---|
| 1095 | | - | act or omission that is the subject of the civil, criminal, administrative |
|---|
| 1096 | | - | or investigative action, suit or proceeding for which indemnification or |
|---|
| 1097 | | - | advancement of expenses is sought, unless the provision in effect at the |
|---|
| 1098 | | - | time of such act or omission explicitly authorizes such elimination or |
|---|
| 1099 | | - | impairment after such action or omission has occurred. |
|---|
| 1100 | | - | (g) A corporation shall have power to purchase and maintain |
|---|
| 1101 | | - | insurance on behalf of any person who is or was a director, officer, |
|---|
| 1102 | | - | employee or agent of the corporation, or is or was serving at the request |
|---|
| 1103 | | - | of the corporation as a director, officer, employee or agent of another |
|---|
| 1104 | | - | corporation, partnership, joint venture, trust or other enterprise against |
|---|
| 1105 | | - | any liability asserted against such person and incurred by such person |
|---|
| 1106 | | - | in any such capacity, or arising out of such person's status as such, |
|---|
| 1107 | | - | whether or not the corporation would have the power to indemnify such |
|---|
| 1108 | | - | person against such liability under this section. |
|---|
| 1109 | | - | (h) For purposes of this section, references to "the corporation" |
|---|
| 1110 | | - | shall include, in addition to the resulting corporation, any constituent |
|---|
| 1111 | | - | corporation, including any constituent of a constituent, absorbed in a |
|---|
| 1112 | | - | consolidation or merger which that, if its separate existence had |
|---|
| 1113 | | - | continued, would have had power and authority to indemnify its |
|---|
| 1114 | | - | directors, officers and employees or agents, so that any person who is |
|---|
| 1115 | | - | or was a director, officer, employee or agent of such constituent |
|---|
| 1116 | | - | corporation, or is or was serving at the request of such constituent |
|---|
| 1117 | | - | corporation as a director, officer, employee or agent of another |
|---|
| 1118 | | - | corporation, partnership, joint venture, trust or other enterprise, shall |
|---|
| 1119 | | - | stand in the same position under this section with respect to the |
|---|
| 1120 | | - | resulting or surviving corporation as such person would have with |
|---|
| 1121 | | - | respect to such constituent corporation if its separate existence had |
|---|
| 1122 | | - | continued. |
|---|
| 1123 | | - | (i) For purposes of this section, references to "other enterprises" |
|---|
| 1124 | | - | shall include employee benefit plans; references to "fines" shall include |
|---|
| 1125 | | - | any excise taxes assessed on a person with respect to any employee |
|---|
| 1126 | | - | benefit plan; and references to "serving at the request of the |
|---|
| 1127 | | - | corporation" shall include any service as a director, officer, employee |
|---|
| 1128 | | - | or agent of the corporation which that imposes duties on, or involves |
|---|
| 1129 | | - | services by, such director, officer, employee or agent with respect to an |
|---|
| 1130 | | - | employee benefit plan, its participants or beneficiaries; and a person |
|---|
| 1131 | | - | who acted in good faith and in a manner such person reasonably |
|---|
| 1132 | | - | believed to be in the interest of the participants and beneficiaries of an |
|---|
| 1133 | | - | employee benefit plan shall be deemed to have acted in a manner "not |
|---|
| 1134 | | - | opposed to the best interests of the corporation" as referred to in this |
|---|
| 1135 | | - | section. |
|---|
| 1136 | | - | (j) The indemnification and advancement of expenses provided by, |
|---|
| 1137 | | - | or granted pursuant to, this section shall, unless otherwise provided H Sub for SENATE BILL No. 244—page 20 |
|---|
| 1138 | | - | when authorized or ratified, continue as to a person who has ceased to |
|---|
| 1139 | | - | be a director, officer, employee or agent and shall inure to the benefit of |
|---|
| 1140 | | - | the heirs, executors and administrators of such a person. |
|---|
| 1141 | | - | (k) The district court is hereby vested with jurisdiction to hear and |
|---|
| 1142 | | - | determine all actions for advancement of expenses or indemnification |
|---|
| 1143 | | - | brought under this section or under any bylaw, agreement, vote of |
|---|
| 1144 | | - | stockholders or disinterested directors, or otherwise. The district court |
|---|
| 1145 | | - | may summarily determine a corporation's obligation to advance |
|---|
| 1146 | | - | expenses, including attorney fees. |
|---|
| 1147 | | - | Sec. 14. K.S.A. 2022 Supp. 17-6401 is hereby amended to read as |
|---|
| 1148 | | - | follows: 17-6401. (a) Every corporation may issue one or more classes |
|---|
| 1149 | | - | of stock or one or more series of stock within any class thereof, any or |
|---|
| 1150 | | - | all of which classes may be of stock with par value or stock without par |
|---|
| 1151 | | - | value and which classes or series may have such voting powers, full or |
|---|
| 1152 | | - | limited, or no voting powers, and such designations, preferences and |
|---|
| 1153 | | - | relative, participating, optional or other special rights, and |
|---|
| 1154 | | - | qualifications, limitations or restrictions thereof, as shall be stated and |
|---|
| 1155 | | - | expressed in the articles of incorporation or of any amendment thereto, |
|---|
| 1156 | | - | or in the resolution or resolutions providing for the issue of such stock |
|---|
| 1157 | | - | adopted by the board of directors pursuant to authority expressly vested |
|---|
| 1158 | | - | in it by the articles of incorporation. Any of the voting powers, |
|---|
| 1159 | | - | designations, preferences, rights and qualifications, limitations or |
|---|
| 1160 | | - | restrictions of any such class or series of stock may be made dependent |
|---|
| 1161 | | - | upon facts ascertainable outside the articles of incorporation or of any |
|---|
| 1162 | | - | amendment thereto, or outside the resolution or resolutions providing |
|---|
| 1163 | | - | for the issue of such stock adopted by the board of directors pursuant to |
|---|
| 1164 | | - | authority expressly vested in it by the articles of incorporation, |
|---|
| 1165 | | - | provided that if the manner in which such facts shall operate upon the |
|---|
| 1166 | | - | voting powers, designations, preferences, rights and qualifications, |
|---|
| 1167 | | - | limitations or restrictions of such class or series of stock is clearly and |
|---|
| 1168 | | - | expressly set forth in the articles of incorporation or in the resolution or |
|---|
| 1169 | | - | resolutions providing for the issue of such stock adopted by the board |
|---|
| 1170 | | - | of directors. The term "Facts," as used in this subsection, includes, but |
|---|
| 1171 | | - | is not limited to, the occurrence of any event, including a determination |
|---|
| 1172 | | - | or action by any person or body, including the corporation. The power |
|---|
| 1173 | | - | to increase or decrease or otherwise adjust the capital stock as provided |
|---|
| 1174 | | - | in this code shall apply to all or any such classes of stock. |
|---|
| 1175 | | - | (b) (1) Any stock of any class or series may be made subject to |
|---|
| 1176 | | - | redemption by the corporation at its option or at the option of the |
|---|
| 1177 | | - | holders of such stock or upon the happening of a specified event. |
|---|
| 1178 | | - | Immediately following any such redemption the corporation shall have |
|---|
| 1179 | | - | outstanding one or more shares of one or more classes or series of |
|---|
| 1180 | | - | stock, which and such share, or shares together, shall have full voting |
|---|
| 1181 | | - | powers. Notwithstanding the foregoing such limitation: |
|---|
| 1182 | | - | (1)(A) Any stock of a regulated investment company registered |
|---|
| 1183 | | - | under the investment company act of 1940, 15 U.S.C. §§ 80a-1 et seq., |
|---|
| 1184 | | - | and amendments thereto, may be made subject to redemption by the |
|---|
| 1185 | | - | corporation at its option or at the option of the holders of such stock; |
|---|
| 1186 | | - | and |
|---|
| 1187 | | - | (2)(B) any stock of a corporation which that holds directly or |
|---|
| 1188 | | - | indirectly a license or franchise from a governmental agency to conduct |
|---|
| 1189 | | - | its business or is a member of a national securities exchange, which |
|---|
| 1190 | | - | and such license, franchise or membership is conditioned upon some or |
|---|
| 1191 | | - | all of the holders of its stock possessing prescribed qualifications, may |
|---|
| 1192 | | - | be made subject to redemption by the corporation to the extent |
|---|
| 1193 | | - | necessary to prevent the loss of such license, franchise or membership |
|---|
| 1194 | | - | or to reinstate it. |
|---|
| 1195 | | - | (2) Any stock which that may be made redeemable under this |
|---|
| 1196 | | - | section may be redeemed for cash, property or rights, including H Sub for SENATE BILL No. 244—page 21 |
|---|
| 1197 | | - | securities of the same or another corporation, at such time or times, |
|---|
| 1198 | | - | price or prices, or rate or rates, and with such adjustments, as shall be |
|---|
| 1199 | | - | stated in the articles of incorporation or in the resolution or resolutions |
|---|
| 1200 | | - | providing for the issue of such stock adopted by the board of directors |
|---|
| 1201 | | - | pursuant to subsection (a). |
|---|
| 1202 | | - | (c) The holders of preferred or special stock of any class or of any |
|---|
| 1203 | | - | series thereof shall be entitled to receive dividends at such rates, on |
|---|
| 1204 | | - | such conditions and at such times as shall be stated in the articles of |
|---|
| 1205 | | - | incorporation or in the resolution or resolutions providing for the issue |
|---|
| 1206 | | - | of such stock adopted by the board of directors as hereinabove |
|---|
| 1207 | | - | provided in this section, payable in preference to, or in such relation to, |
|---|
| 1208 | | - | the dividends payable on any other class or classes or of any other |
|---|
| 1209 | | - | series of stock, and cumulative or noncumulative as shall be so stated |
|---|
| 1210 | | - | and expressed. When dividends upon the preferred and special stocks, |
|---|
| 1211 | | - | if any, to the extent of the preference to which such stocks are entitled, |
|---|
| 1212 | | - | shall have been paid or declared and set apart for payment, a dividend |
|---|
| 1213 | | - | on the remaining class or classes or series of stock may then be paid out |
|---|
| 1214 | | - | of the remaining assets of the corporation available for dividends as |
|---|
| 1215 | | - | elsewhere provided in this code provided. |
|---|
| 1216 | | - | (d) The holders of the preferred or special stock of any class or of |
|---|
| 1217 | | - | any series thereof shall be entitled to such rights upon the dissolution |
|---|
| 1218 | | - | of, or upon any distribution of the assets of, the corporation as shall be |
|---|
| 1219 | | - | stated in the articles of incorporation or in the resolution or resolutions |
|---|
| 1220 | | - | providing for the issue of such stock adopted by the board of directors. |
|---|
| 1221 | | - | (e) At the option of either the holder or the corporation or upon the |
|---|
| 1222 | | - | happening of a specified event, any stock of any class or of any series |
|---|
| 1223 | | - | thereof may be made convertible into or exchangeable for shares of any |
|---|
| 1224 | | - | other class or classes or any other series of the same or any other class |
|---|
| 1225 | | - | or classes of stock of the corporation, at such price or prices or at such |
|---|
| 1226 | | - | rate or rates of exchange and with such adjustments as shall be stated in |
|---|
| 1227 | | - | the articles of incorporation or in the resolution or resolutions providing |
|---|
| 1228 | | - | for the issue of such stock adopted by the board of directors. |
|---|
| 1229 | | - | (f) If any corporation shall be authorized to issue more than one |
|---|
| 1230 | | - | class of stock or more than one series of any class, the powers, |
|---|
| 1231 | | - | designations, preferences and relative, participating, optional or other |
|---|
| 1232 | | - | special rights of each class of stock or series thereof and the |
|---|
| 1233 | | - | qualifications, limitations or restrictions of such preferences or rights |
|---|
| 1234 | | - | shall be set forth in full or summarized on the face or back of the |
|---|
| 1235 | | - | certificate which that the corporation shall issue to represent |
|---|
| 1236 | | - | certificated shares of such class or series of stock. Except as otherwise |
|---|
| 1237 | | - | provided in K.S.A. 17-6426, and amendments thereto, in lieu of the |
|---|
| 1238 | | - | foregoing requirements, there may be set forth on the face or back of |
|---|
| 1239 | | - | the certificate which that the corporation issues to represent such class |
|---|
| 1240 | | - | or series of stock, a statement that the corporation will furnish without |
|---|
| 1241 | | - | charge to each stockholder who so requests the powers, designations, |
|---|
| 1242 | | - | preferences and relative, participating, optional or other special rights |
|---|
| 1243 | | - | of each class of stock or series thereof and the qualifications, |
|---|
| 1244 | | - | limitations or restrictions of such preferences or rights, or both. Within |
|---|
| 1245 | | - | a reasonable time after the issuance or transfer of uncertificated stock, |
|---|
| 1246 | | - | the corporation shall send to the registered owner thereof shall be given |
|---|
| 1247 | | - | a written notice, in writing or by electronic transmission, containing the |
|---|
| 1248 | | - | information required to be set forth or stated on certificates pursuant to |
|---|
| 1249 | | - | this section or K.S.A. 17-6406, K.S.A. 17-6426(a) or K.S.A., 17- |
|---|
| 1250 | | - | 6508(a) or 17-72a04, and amendments thereto, or with respect to this |
|---|
| 1251 | | - | section a statement that the corporation will furnish without charge to |
|---|
| 1252 | | - | each stockholder who so requests the powers, designations, preferences |
|---|
| 1253 | | - | and relative participating, optional or other special rights of each class |
|---|
| 1254 | | - | of stock or series thereof and the qualifications, limitations or |
|---|
| 1255 | | - | restrictions of such preferences or rights, or both. Except as otherwise H Sub for SENATE BILL No. 244—page 22 |
|---|
| 1256 | | - | expressly provided by law, the rights and obligations of the holders of |
|---|
| 1257 | | - | uncertificated stock and the rights and obligations of the holders of |
|---|
| 1258 | | - | certificates representing stock of the same class and series shall be |
|---|
| 1259 | | - | identical. |
|---|
| 1260 | | - | (g) When any corporation desires to issue any shares of stock of |
|---|
| 1261 | | - | any class or of any series of any class of which the powers, |
|---|
| 1262 | | - | designations, preferences and relative, participating, optional or other |
|---|
| 1263 | | - | rights, if any, or the qualifications, limitations or restrictions thereof, if |
|---|
| 1264 | | - | any, shall not have been set forth in the articles of incorporation or in |
|---|
| 1265 | | - | any amendment thereto, but shall be provided for in a resolution or |
|---|
| 1266 | | - | resolutions adopted by the board of directors pursuant to authority |
|---|
| 1267 | | - | expressly vested in it by the articles of incorporation or any amendment |
|---|
| 1268 | | - | thereto, a certificate of designations setting forth a copy of such |
|---|
| 1269 | | - | resolution or resolutions and the number of shares of stock of such |
|---|
| 1270 | | - | class or series shall be executed in accordance with K.S.A. 2022 Supp. |
|---|
| 1271 | | - | 17-7908, and amendments thereto, filed in accordance with K.S.A. |
|---|
| 1272 | | - | 2022 Supp. 17-7910, and amendments thereto, and shall become |
|---|
| 1273 | | - | effective in accordance with K.S.A. 2022 Supp. 17-7911, and |
|---|
| 1274 | | - | amendments thereto. Unless otherwise provided in any such resolution |
|---|
| 1275 | | - | or resolutions, the number of shares of stock of any such series to |
|---|
| 1276 | | - | which such resolution or resolutions apply may be increased, but not |
|---|
| 1277 | | - | above the total number of authorized shares of the class, or decreased, |
|---|
| 1278 | | - | but not below the number of shares thereof then outstanding, by a |
|---|
| 1279 | | - | certificate likewise executed and filed setting forth a statement that a |
|---|
| 1280 | | - | specified increase or decrease had been authorized and directed by a |
|---|
| 1281 | | - | resolution or resolutions likewise adopted by the board of directors. In |
|---|
| 1282 | | - | case the number of such shares shall be decreased, the number of |
|---|
| 1283 | | - | shares specified in the certificate shall resume the status which that |
|---|
| 1284 | | - | they had prior to the adoption of the first resolution or resolutions. |
|---|
| 1285 | | - | When no shares of any such class or series are outstanding, either |
|---|
| 1286 | | - | because none were issued or because no issued shares of any such class |
|---|
| 1287 | | - | or series remain outstanding, a certificate setting forth a resolution or |
|---|
| 1288 | | - | resolutions adopted by the board of directors that none of the |
|---|
| 1289 | | - | authorized shares of such class or series are outstanding and that none |
|---|
| 1290 | | - | will be issued, subject to the certificate of designations previously filed |
|---|
| 1291 | | - | with respect to such class or series, may be executed in accordance |
|---|
| 1292 | | - | with K.S.A. 2022 Supp. 17-7908, and amendments thereto, and filed in |
|---|
| 1293 | | - | accordance with K.S.A. 2022 Supp. 17-7910, and amendments thereto. |
|---|
| 1294 | | - | When such certificate becomes effective, it shall have the effect of |
|---|
| 1295 | | - | eliminating from the articles of incorporation all matters set forth in the |
|---|
| 1296 | | - | certificate of designations with respect to such class or series of stock. |
|---|
| 1297 | | - | Unless otherwise provided in the articles of incorporation, if no shares |
|---|
| 1298 | | - | of stock have been issued of a class or series of stock established by a |
|---|
| 1299 | | - | resolution of the board of directors, the voting powers, designations, |
|---|
| 1300 | | - | preferences and relative, participating, optional or other rights, if any, |
|---|
| 1301 | | - | or the qualifications, limitations or restrictions thereof, may be |
|---|
| 1302 | | - | amended by a resolution or resolutions adopted by the board of |
|---|
| 1303 | | - | directors. A certificate which:(1) that states that no shares of the class |
|---|
| 1304 | | - | or series have been issued;(2), sets forth a copy of the resolution or |
|---|
| 1305 | | - | resolutions; and (3), if the designation of the class or series is being |
|---|
| 1306 | | - | changed, indicates the original designation and the new designation |
|---|
| 1307 | | - | shall be executed in accordance with K.S.A. 2022 Supp. 17-7908, and |
|---|
| 1308 | | - | amendments thereto, filed in accordance with K.S.A. 2022 Supp. 17- |
|---|
| 1309 | | - | 7910, and amendments thereto, and shall become effective in |
|---|
| 1310 | | - | accordance with K.S.A. 2022 Supp. 17-7911, and amendments thereto. |
|---|
| 1311 | | - | When any certificate filed under this subsection becomes effective, it |
|---|
| 1312 | | - | shall have the effect of amending the articles of incorporation, except |
|---|
| 1313 | | - | that neither the filing of such certificate nor the filing of restated |
|---|
| 1314 | | - | articles of incorporation pursuant to K.S.A. 17-6605, and amendments H Sub for SENATE BILL No. 244—page 23 |
|---|
| 1315 | | - | thereto, shall prohibit the board of directors from subsequently |
|---|
| 1316 | | - | adopting such resolutions as authorized by this subsection. |
|---|
| 1317 | | - | Sec. 15. K.S.A. 2022 Supp. 17-6408 is hereby amended to read as |
|---|
| 1318 | | - | follows: 17-6408. The shares of a corporation shall be represented by |
|---|
| 1319 | | - | certificates, except that the board of directors of the corporation may |
|---|
| 1320 | | - | provide by resolution or resolutions that some or all of any or all |
|---|
| 1321 | | - | classes or series of its stock shall be uncertificated shares. Any such |
|---|
| 1322 | | - | resolution shall not apply to shares represented by a certificate until |
|---|
| 1323 | | - | such certificate is surrendered to the corporation. Every holder of stock |
|---|
| 1324 | | - | represented by certificates shall be entitled to have a certificate signed |
|---|
| 1325 | | - | by, or in the name of, the corporation by the chairperson or vice- |
|---|
| 1326 | | - | chairperson of the board of directors, or the president or vice-president, |
|---|
| 1327 | | - | and by the treasurer or an assistant treasurer, or the secretary or |
|---|
| 1328 | | - | assistant secretary of such any two authorized officers of the |
|---|
| 1329 | | - | corporation representing the number of shares registered in certificate |
|---|
| 1330 | | - | form. Any or all of the signatures on the certificate may be a facsimile. |
|---|
| 1331 | | - | In the event that any officer, transfer agent or registrar who has signed |
|---|
| 1332 | | - | or whose facsimile signature has been placed upon a certificate has |
|---|
| 1333 | | - | ceased to be such officer, transfer agent or registrar before such |
|---|
| 1334 | | - | certificate is issued, such certificate may be issued by the corporation |
|---|
| 1335 | | - | with the same effect as if the person were such officer, transfer agent or |
|---|
| 1336 | | - | registrar at the date of issue. A corporation shall not have power to |
|---|
| 1337 | | - | issue a certificate in bearer form. |
|---|
| 1338 | | - | Sec. 16. K.S.A. 2022 Supp. 17-6410 is hereby amended to read as |
|---|
| 1339 | | - | follows: 17-6410. (a) Every corporation may purchase, redeem, |
|---|
| 1340 | | - | receive, take or otherwise acquire, own and hold, sell, lend, exchange, |
|---|
| 1341 | | - | transfer or otherwise dispose of, pledge, use and otherwise deal in and |
|---|
| 1342 | | - | with its own shares; provided, however, that. No corporation shall: |
|---|
| 1343 | | - | (1) Purchase or redeem its own shares of capital stock for cash or |
|---|
| 1344 | | - | other property when the capital of the corporation is impaired or when |
|---|
| 1345 | | - | such purchase or redemption would cause any impairment of the capital |
|---|
| 1346 | | - | of the corporation, except that a corporation other than a nonstock |
|---|
| 1347 | | - | corporation may purchase or redeem out of capital any of its own |
|---|
| 1348 | | - | shares which that are entitled upon any distribution of its assets, |
|---|
| 1349 | | - | whether by dividend or in liquidation, to a preference over another |
|---|
| 1350 | | - | class or series of its stock, or, if no shares entitled to such a preference |
|---|
| 1351 | | - | are outstanding, any of its own shares, if such shares will be retired |
|---|
| 1352 | | - | upon their acquisition and the capital of the corporation reduced in |
|---|
| 1353 | | - | accordance with K.S.A. 17-6603 and 17-6604, and amendments |
|---|
| 1354 | | - | thereto. Nothing in this subsection shall invalidate or otherwise affect a |
|---|
| 1355 | | - | note, debenture or other obligation of a corporation given by it as |
|---|
| 1356 | | - | consideration for its acquisition by purchase, redemption or exchange |
|---|
| 1357 | | - | of its shares of stock if at the time such note, debenture or obligation |
|---|
| 1358 | | - | was delivered by the corporation its capital was not then impaired or |
|---|
| 1359 | | - | did not thereby become impaired; |
|---|
| 1360 | | - | (2) purchase, for more than the price at which they may then be |
|---|
| 1361 | | - | redeemed, any of its shares which that are redeemable at the option of |
|---|
| 1362 | | - | the corporation; or |
|---|
| 1363 | | - | (3) (A) in the case of a corporation other than a nonstock |
|---|
| 1364 | | - | corporation, redeem any of its shares unless their redemption is |
|---|
| 1365 | | - | authorized by K.S.A. 17-6401(b), and amendments thereto, and then |
|---|
| 1366 | | - | only in accordance with such section and the articles of incorporation; |
|---|
| 1367 | | - | or |
|---|
| 1368 | | - | (B) in the case of a nonstock corporation, redeem any of its |
|---|
| 1369 | | - | membership interests, unless their redemption is authorized by the |
|---|
| 1370 | | - | articles of incorporation and then only in accordance with the articles |
|---|
| 1371 | | - | of incorporation. |
|---|
| 1372 | | - | (b) Nothing in this section limits or affects a corporation's right to |
|---|
| 1373 | | - | resell any of its shares theretofore previously purchased or redeemed H Sub for SENATE BILL No. 244—page 24 |
|---|
| 1374 | | - | out of surplus and which that have not been retired, for such |
|---|
| 1375 | | - | consideration as shall be fixed by the board of directors. |
|---|
| 1376 | | - | (c) (1) Shares of its own a corporation's capital stock belonging to |
|---|
| 1377 | | - | shall neither be entitled to vote nor be counted for quorum purposes if |
|---|
| 1378 | | - | such shares belong to: |
|---|
| 1379 | | - | (A) The corporation or to; |
|---|
| 1380 | | - | (B) another corporation, if a majority of the shares entitled to vote |
|---|
| 1381 | | - | in the election of directors of such other corporation is held, directly or |
|---|
| 1382 | | - | indirectly, by the corporation, shall neither be entitled to vote nor be |
|---|
| 1383 | | - | counted for quorum purposes; or |
|---|
| 1384 | | - | (C) any other entity, if a majority of the voting power of such |
|---|
| 1385 | | - | other entity is held, directly or indirectly, by the corporation or if such |
|---|
| 1386 | | - | other entity is otherwise controlled, directly or indirectly, by the |
|---|
| 1387 | | - | corporation. |
|---|
| 1388 | | - | (2) Nothing in this section shall be construed as limiting the right |
|---|
| 1389 | | - | of any corporation to vote stock, including, but not limited to, its own |
|---|
| 1390 | | - | stock, held by it in a fiduciary capacity. |
|---|
| 1391 | | - | (d) Shares which that have been called for redemption shall not be |
|---|
| 1392 | | - | deemed to be outstanding shares for the purpose of voting or |
|---|
| 1393 | | - | determining the total number of shares entitled to vote on any matter on |
|---|
| 1394 | | - | and after the date on which written when notice of redemption has been |
|---|
| 1395 | | - | sent to holders thereof and a sum sufficient to redeem such shares has |
|---|
| 1396 | | - | been irrevocably deposited or set aside to pay the redemption price to |
|---|
| 1397 | | - | the holders of the shares upon surrender of certificates therefor. |
|---|
| 1398 | | - | Sec. 17. K.S.A. 2022 Supp. 17-6413 is hereby amended to read as |
|---|
| 1399 | | - | follows: 17-6413. The capital stock of a corporation shall be paid for in |
|---|
| 1400 | | - | such amounts and at such times as the directors may require. From time |
|---|
| 1401 | | - | to time, the directors may demand payment, in respect of each share of |
|---|
| 1402 | | - | stock not fully paid, of such sum of money as the necessities of the |
|---|
| 1403 | | - | business may require, in the judgment of the board of directors, not |
|---|
| 1404 | | - | exceeding in the whole the balance remaining unpaid on said stock, and |
|---|
| 1405 | | - | such sum so demanded shall be paid to the corporation at such times |
|---|
| 1406 | | - | and by such installments as the directors shall direct. The directors shall |
|---|
| 1407 | | - | give written notice of the time and place of such payments to each |
|---|
| 1408 | | - | holder of or subscriber for stock which that is not fully paid at such |
|---|
| 1409 | | - | holder's or subscriber's last known post office postal address, which |
|---|
| 1410 | | - | and such notice shall be mailed given at least 30 days before the time |
|---|
| 1411 | | - | for such payment. |
|---|
| 1412 | | - | Sec. 18. K.S.A. 2022 Supp. 17-6426 is hereby amended to read as |
|---|
| 1413 | | - | follows: 17-6426. (a) A written restriction or restrictions on the transfer |
|---|
| 1414 | | - | or registration of transfer of a security of a corporation, or on the |
|---|
| 1415 | | - | amount of the corporation's securities that may be owned by any person |
|---|
| 1416 | | - | or group of persons, if permitted by this section and noted |
|---|
| 1417 | | - | conspicuously on the certificate or certificates representing the security |
|---|
| 1418 | | - | or securities so restricted, or, in the case of uncertificated shares, |
|---|
| 1419 | | - | contained in the notice or notices sent given pursuant to K.S.A. 17- |
|---|
| 1420 | | - | 6401(f), and amendments thereto, may be enforced against the holder |
|---|
| 1421 | | - | of the restricted security or securities or any successor or transferee of |
|---|
| 1422 | | - | the holder, including an executor, administrator, trustee, guardian or |
|---|
| 1423 | | - | other fiduciary entrusted with like responsibility for the person or estate |
|---|
| 1424 | | - | of the holder. Unless noted conspicuously on the certificate or |
|---|
| 1425 | | - | certificates representing the security or securities so restricted, or, in the |
|---|
| 1426 | | - | case of uncertificated shares, contained in the notice or notices sent |
|---|
| 1427 | | - | given pursuant to K.S.A. 17-6401(f), and amendments thereto, a |
|---|
| 1428 | | - | restriction, even though permitted by this section, is ineffective except |
|---|
| 1429 | | - | against a person with actual knowledge of the restriction. |
|---|
| 1430 | | - | (b) A restriction on the transfer or registration of transfer of |
|---|
| 1431 | | - | securities of a corporation, or on the amount of a corporation's |
|---|
| 1432 | | - | securities that may be owned by any person or group of persons, may H Sub for SENATE BILL No. 244—page 25 |
|---|
| 1433 | | - | be imposed by the articles of incorporation or by the bylaws or by an |
|---|
| 1434 | | - | agreement among any number of security holders or among such |
|---|
| 1435 | | - | holders and the corporation. No restriction so imposed shall be binding |
|---|
| 1436 | | - | with respect to securities issued prior to the adoption of the restriction |
|---|
| 1437 | | - | unless the holders of the securities are parties to an agreement or voted |
|---|
| 1438 | | - | in favor of the restriction. |
|---|
| 1439 | | - | (c) A restriction on the transfer or registration of transfer of |
|---|
| 1440 | | - | securities of a corporation or on the amount of such securities that may |
|---|
| 1441 | | - | be owned by any person or group of persons is permitted by this |
|---|
| 1442 | | - | section if it: |
|---|
| 1443 | | - | (1) Obligates the holder of the restricted securities to offer to the |
|---|
| 1444 | | - | corporation or to any other holders of securities of the corporation or to |
|---|
| 1445 | | - | any other person or to any combination of the foregoing thereof, a prior |
|---|
| 1446 | | - | opportunity, to be exercised within a reasonable time, to acquire the |
|---|
| 1447 | | - | restricted securities; |
|---|
| 1448 | | - | (2) obligates the corporation or any holder of securities of the |
|---|
| 1449 | | - | corporation or any other person or any combination of the foregoing |
|---|
| 1450 | | - | thereof, to purchase the securities which that are the subject of an |
|---|
| 1451 | | - | agreement respecting the purchase and sale of the restricted securities; |
|---|
| 1452 | | - | (3) requires the corporation or the holders of any class or series of |
|---|
| 1453 | | - | securities of the corporation to consent to any proposed transfer of the |
|---|
| 1454 | | - | restricted securities or to approve the proposed transferee of the |
|---|
| 1455 | | - | restricted securities, or to approve the amount of securities of the |
|---|
| 1456 | | - | corporation that may be owned by any person or group of persons; |
|---|
| 1457 | | - | (4) obligates the holder of the restricted securities to sell or |
|---|
| 1458 | | - | transfer an amount of restricted securities to the corporation or to any |
|---|
| 1459 | | - | other holders of securities of the corporation or to any other person or |
|---|
| 1460 | | - | to any combination of the foregoing thereof, or causes or results in the |
|---|
| 1461 | | - | automatic sale or transfer of an amount of restricted securities to the |
|---|
| 1462 | | - | corporation or to any other holders of securities of the corporation or to |
|---|
| 1463 | | - | any other person or to any combination of the foregoing thereof; or |
|---|
| 1464 | | - | (5) prohibits or restricts the transfer of the restricted securities to, |
|---|
| 1465 | | - | or the ownership of restricted securities by, designated persons or |
|---|
| 1466 | | - | classes of persons or groups of persons, and such designation is not |
|---|
| 1467 | | - | manifestly unreasonable. |
|---|
| 1468 | | - | (d) Any restriction on the transfer or the registration of transfer of |
|---|
| 1469 | | - | the securities of a corporation, or on the amount of securities of a |
|---|
| 1470 | | - | corporation that may be owned by a person or group of persons, for any |
|---|
| 1471 | | - | of the following purposes shall be conclusively presumed to be for a |
|---|
| 1472 | | - | reasonable purpose: |
|---|
| 1473 | | - | (1) Maintaining any local, state, federal or foreign tax advantage |
|---|
| 1474 | | - | to the corporation or its stockholders, including without limitation: |
|---|
| 1475 | | - | (A) Maintaining the corporation's status as an electing small |
|---|
| 1476 | | - | business corporation under subchapter S of the United States internal |
|---|
| 1477 | | - | revenue code, 26 U.S.C. § 1371 et seq.; |
|---|
| 1478 | | - | (B) maintaining or preserving any tax attribute, including without |
|---|
| 1479 | | - | limitation net operating losses; or |
|---|
| 1480 | | - | (C) qualifying or maintaining the qualification of the corporation |
|---|
| 1481 | | - | as a real estate investment trust pursuant to the United States internal |
|---|
| 1482 | | - | revenue code or regulations adopted pursuant to the United States |
|---|
| 1483 | | - | internal revenue code; or |
|---|
| 1484 | | - | (2) maintaining any statutory or regulatory advantage or |
|---|
| 1485 | | - | complying with any statutory or regulatory requirements under |
|---|
| 1486 | | - | applicable local, state, federal or foreign law. |
|---|
| 1487 | | - | (e) Any other lawful restriction on transfer or registration of |
|---|
| 1488 | | - | transfer of securities, or on the amount of securities that may be owned |
|---|
| 1489 | | - | by any person or group of persons, is permitted by this section. |
|---|
| 1490 | | - | Sec. 19. K.S.A. 2022 Supp. 17-6427 is hereby amended to read as |
|---|
| 1491 | | - | follows: 17-6427. (a) Notwithstanding any other provisions of this H Sub for SENATE BILL No. 244—page 26 |
|---|
| 1492 | | - | chapter, a corporation shall not engage in any business combination |
|---|
| 1493 | | - | with any interested stockholder for a period of three years following the |
|---|
| 1494 | | - | time that such stockholder became an interested stockholder, unless: |
|---|
| 1495 | | - | (1) Prior to such time the board of directors of the corporation |
|---|
| 1496 | | - | approved either the business combination or the transaction which that |
|---|
| 1497 | | - | resulted in the stockholder becoming an interested stockholder; |
|---|
| 1498 | | - | (2) upon consummation of the transaction which that resulted in |
|---|
| 1499 | | - | the stockholder becoming an interested stockholder, the interested |
|---|
| 1500 | | - | stockholder owned at least 85% of the voting stock of the corporation |
|---|
| 1501 | | - | outstanding at the time the transaction commenced, excluding for |
|---|
| 1502 | | - | purposes of determining the voting stock outstanding, but not the |
|---|
| 1503 | | - | outstanding voting stock owned by the interested stockholder, those |
|---|
| 1504 | | - | shares owned: |
|---|
| 1505 | | - | (A) By persons who are directors and also officers; and |
|---|
| 1506 | | - | (B) employee stock plans in which employee participants do not |
|---|
| 1507 | | - | have the right to determine confidentially whether shares held subject |
|---|
| 1508 | | - | to the plan will be tendered in a tender or exchange offer; or |
|---|
| 1509 | | - | (3) at or subsequent to such time the business combination is |
|---|
| 1510 | | - | approved by the board of directors and authorized at an annual or |
|---|
| 1511 | | - | special meeting of stockholders, and not by written consent, by the |
|---|
| 1512 | | - | affirmative vote of at least 66 |
|---|
| 1513 | | - | 2 |
|---|
| 1514 | | - | /3% of the outstanding voting stock |
|---|
| 1515 | | - | which that is not owned by the interested stockholder. |
|---|
| 1516 | | - | (b) The restrictions contained in this section shall not apply if: |
|---|
| 1517 | | - | (1) The corporation's original articles of incorporation contain a |
|---|
| 1518 | | - | provision expressly electing not to be governed by this section or the |
|---|
| 1519 | | - | Kansas business combinations with interested shareholders act; |
|---|
| 1520 | | - | (2) the corporation, by action of its board of directors, adopts an |
|---|
| 1521 | | - | amendment to its bylaws on or before July 1, 1990, expressly electing |
|---|
| 1522 | | - | not to be governed by this section or the Kansas business combinations |
|---|
| 1523 | | - | with interested shareholders act, which amendment shall not be further |
|---|
| 1524 | | - | amended by the board of directors; |
|---|
| 1525 | | - | (3) the corporation, by action of its stockholders, adopts an |
|---|
| 1526 | | - | amendment to its articles of incorporation or bylaws expressly electing |
|---|
| 1527 | | - | not to be governed by this section, except that, in addition to any other |
|---|
| 1528 | | - | vote required by law, such amendment to the articles of incorporation |
|---|
| 1529 | | - | or bylaws must be approved adopted by the affirmative vote of a |
|---|
| 1530 | | - | majority of the shares outstanding stock entitled to vote thereon. |
|---|
| 1531 | | - | (A) An amendment adopted pursuant to this paragraph shall be |
|---|
| 1532 | | - | effective immediately In the case of a corporation that both: (A) has |
|---|
| 1533 | | - | never had a class of voting stock that falls within any of the two |
|---|
| 1534 | | - | categories set out in subsection (b)(4); and (B) has not elected by a |
|---|
| 1535 | | - | provision in its original articles of incorporation, or any amendment |
|---|
| 1536 | | - | thereto, to be governed by this section, such amendment shall become |
|---|
| 1537 | | - | effective upon: |
|---|
| 1538 | | - | (i) In the case of an amendment to the articles of incorporation, |
|---|
| 1539 | | - | the date and time when the filed amendment shall become effective in |
|---|
| 1540 | | - | accordance with K.S.A. 2022 Supp. 17-7911, and amendments thereto; |
|---|
| 1541 | | - | or |
|---|
| 1542 | | - | (ii) in the case of an amendment to the bylaws, the date of |
|---|
| 1543 | | - | adoption of such amendment. |
|---|
| 1544 | | - | (B) (i) In all other cases, an amendment adopted pursuant to this |
|---|
| 1545 | | - | paragraph shall not be effective until 12 months after become effective: |
|---|
| 1546 | | - | (a) In the case of an amendment to the articles of incorporation, |
|---|
| 1547 | | - | 12 months after the date and time when the filed amendment shall |
|---|
| 1548 | | - | become effective in accordance with K.S.A. 2022 Supp. 17-7911, and |
|---|
| 1549 | | - | amendments thereto; or |
|---|
| 1550 | | - | (b) in the case of an amendment to the bylaws, 12 months after the |
|---|
| 1551 | | - | date of the adoption of such amendment; and |
|---|
| 1552 | | - | (ii) in either case, the election not to be governed by this section H Sub for SENATE BILL No. 244—page 27 |
|---|
| 1553 | | - | shall not apply to any business combination between such corporation |
|---|
| 1554 | | - | and any person who became an interested stockholder of such |
|---|
| 1555 | | - | corporation on or prior to such adoption before: |
|---|
| 1556 | | - | (a) In the case of an amendment to the articles of incorporation, |
|---|
| 1557 | | - | the date and time when the filed amendment shall become effective in |
|---|
| 1558 | | - | accordance with K.S.A. 2022 Supp. 17-7911, and amendments thereto; |
|---|
| 1559 | | - | or |
|---|
| 1560 | | - | (b) in the case of an amendment to the bylaws, the date of the |
|---|
| 1561 | | - | adoption of such amendment. |
|---|
| 1562 | | - | (C) A bylaw amendment adopted pursuant to this paragraph shall |
|---|
| 1563 | | - | not be further amended by the board of directors; |
|---|
| 1564 | | - | (4) the corporation does not have a class of voting stock that is: |
|---|
| 1565 | | - | (A) Listed on a national securities exchange; or |
|---|
| 1566 | | - | (B) held of record by more than 2,000 stockholders, unless any of |
|---|
| 1567 | | - | the foregoing results from action taken, directly or indirectly, by an |
|---|
| 1568 | | - | interested stockholder or from a transaction in which a person becomes |
|---|
| 1569 | | - | an interested stockholder; |
|---|
| 1570 | | - | (5) a stockholder becomes an interested stockholder inadvertently |
|---|
| 1571 | | - | and: |
|---|
| 1572 | | - | (A) As soon as practicable divests itself of ownership of sufficient |
|---|
| 1573 | | - | shares so that the stockholder ceases to be an interested stockholder; |
|---|
| 1574 | | - | and |
|---|
| 1575 | | - | (B) would not, at any time within the three-year period |
|---|
| 1576 | | - | immediately prior to a business combination between the corporation |
|---|
| 1577 | | - | and such stockholder, have been an interested stockholder but for the |
|---|
| 1578 | | - | inadvertent acquisition of ownership; |
|---|
| 1579 | | - | (6) (A) the business combination is proposed prior to the |
|---|
| 1580 | | - | consummation or abandonment of and subsequent to the earlier of the |
|---|
| 1581 | | - | public announcement or the notice required by this subsection of a |
|---|
| 1582 | | - | proposed transaction which that: |
|---|
| 1583 | | - | (i) Constitutes one of the transactions described in the second |
|---|
| 1584 | | - | sentence of this paragraph subparagraph (B); |
|---|
| 1585 | | - | (ii) is with or by a person who either was not an interested |
|---|
| 1586 | | - | stockholder during the previous three years or who became an |
|---|
| 1587 | | - | interested stockholder with the approval of the corporation's board of |
|---|
| 1588 | | - | directors or during the period described in paragraph (7); and |
|---|
| 1589 | | - | (iii) is approved or not opposed by a majority of the members of |
|---|
| 1590 | | - | the board of directors then in office, but not less than one, who were |
|---|
| 1591 | | - | directors prior to any person becoming an interested stockholder during |
|---|
| 1592 | | - | the previous three years or were recommended for election or elected to |
|---|
| 1593 | | - | succeed such directors by a majority of such directors. |
|---|
| 1594 | | - | (B) The proposed transactions referred to in subsection (b)(6)(A) |
|---|
| 1595 | | - | are limited to: |
|---|
| 1596 | | - | (i) A merger or consolidation of the corporation, except for a |
|---|
| 1597 | | - | merger in respect of which, pursuant to K.S.A. 17-6701(f), and |
|---|
| 1598 | | - | amendments thereto, no vote of the stockholders of the corporation is |
|---|
| 1599 | | - | required; |
|---|
| 1600 | | - | (ii) a sale, lease, exchange, mortgage, pledge, transfer or other |
|---|
| 1601 | | - | disposition, in one transaction or a series of transactions, whether as |
|---|
| 1602 | | - | part of a dissolution or otherwise, of assets of the corporation or of any |
|---|
| 1603 | | - | direct or indirect majority-owned subsidiary of the corporation, other |
|---|
| 1604 | | - | than to any direct or indirect wholly-owned subsidiary or to the |
|---|
| 1605 | | - | corporation, having an aggregate market value equal to 50% or more of |
|---|
| 1606 | | - | either that aggregate market value of all of the assets of the corporation |
|---|
| 1607 | | - | determined on a consolidated basis or the aggregate market value of all |
|---|
| 1608 | | - | the outstanding stock of the corporation; or |
|---|
| 1609 | | - | (iii) a proposed tender or exchange offer for 50% or more of the |
|---|
| 1610 | | - | outstanding voting stock of the corporation. The corporation shall give |
|---|
| 1611 | | - | not less than 20 days' notice to all interested stockholders prior to the H Sub for SENATE BILL No. 244—page 28 |
|---|
| 1612 | | - | consummation of any of the transactions described in subparagraph (B) |
|---|
| 1613 | | - | (i) or (ii); or |
|---|
| 1614 | | - | (7) the business combination is with an interested stockholder who |
|---|
| 1615 | | - | became an interested stockholder at a time when the restrictions |
|---|
| 1616 | | - | contained in this section did not apply by reason of any of subsections |
|---|
| 1617 | | - | (b)(1) through (b)(4), except that this paragraph shall not apply if, at the |
|---|
| 1618 | | - | time such interested stockholder became an interested stockholder, the |
|---|
| 1619 | | - | corporation's articles of incorporation contained a provision authorized |
|---|
| 1620 | | - | by the last sentence of this subsection. |
|---|
| 1621 | | - | Notwithstanding subsections (b)(1) through (b)(4), a corporation |
|---|
| 1622 | | - | may elect by a provision of its original articles of incorporation, or any |
|---|
| 1623 | | - | amendment thereto, to be governed by this section, except that any such |
|---|
| 1624 | | - | amendment to the articles of incorporation shall not apply to restrict a |
|---|
| 1625 | | - | business combination between the corporation and an interested |
|---|
| 1626 | | - | stockholder of the corporation if the interested stockholder became |
|---|
| 1627 | | - | such prior to the effective date of the amendment the interested |
|---|
| 1628 | | - | stockholder before the date and time when the filed amendment shall |
|---|
| 1629 | | - | become effective in accordance with K.S.A. 2022 Supp. 17-7911, and |
|---|
| 1630 | | - | amendments thereto. |
|---|
| 1631 | | - | (c) As used in this section only: |
|---|
| 1632 | | - | (1) "Affiliate" means a person that directly, or indirectly through |
|---|
| 1633 | | - | one or more intermediaries, controls, or is controlled by, or is under |
|---|
| 1634 | | - | common control with, another person. |
|---|
| 1635 | | - | (2) "Associate," when used to indicate a relationship with any |
|---|
| 1636 | | - | person, means: |
|---|
| 1637 | | - | (A) Any corporation, partnership, unincorporated association or |
|---|
| 1638 | | - | other entity of which such person is a director, officer or partner or is, |
|---|
| 1639 | | - | directly or indirectly, the owner of 20% or more of any class of voting |
|---|
| 1640 | | - | stock; |
|---|
| 1641 | | - | (B) any trust or other estate in which such person has at least a |
|---|
| 1642 | | - | 20% beneficial interest or as to which such person serves as trustee or |
|---|
| 1643 | | - | in a similar fiduciary capacity; and |
|---|
| 1644 | | - | (C) any relative or spouse of such person, or any relative of such |
|---|
| 1645 | | - | spouse, who has the same residence as such person. |
|---|
| 1646 | | - | (3) "Business combination," when used in reference to any |
|---|
| 1647 | | - | corporation and any interested stockholder of such corporation, means: |
|---|
| 1648 | | - | (A) Any merger or consolidation of the corporation or any direct |
|---|
| 1649 | | - | or indirect majority-owned subsidiary of the corporation with: |
|---|
| 1650 | | - | (i) The interested stockholder; or |
|---|
| 1651 | | - | (ii) with any other corporation, partnership, unincorporated |
|---|
| 1652 | | - | association or other entity if the merger or consolidation is caused by |
|---|
| 1653 | | - | the interested stockholder and as a result of such merger or |
|---|
| 1654 | | - | consolidation subsection (a) is not applicable to the surviving entity; |
|---|
| 1655 | | - | (B) any sale, lease, exchange, mortgage, pledge, transfer or other |
|---|
| 1656 | | - | disposition, in one transaction or a series of transactions, except |
|---|
| 1657 | | - | proportionately as a stockholder of such corporation, to or with the |
|---|
| 1658 | | - | interested stockholder, whether as part of a dissolution or otherwise, of |
|---|
| 1659 | | - | assets of the corporation or of any direct or indirect majority-owned |
|---|
| 1660 | | - | subsidiary of the corporation which assets that have an aggregate |
|---|
| 1661 | | - | market value equal to 10% or more of either the aggregate market value |
|---|
| 1662 | | - | of all the assets of the corporation determined on a consolidated basis |
|---|
| 1663 | | - | or the aggregate market value of all the outstanding stock of the |
|---|
| 1664 | | - | corporation; |
|---|
| 1665 | | - | (C) any transaction which that results in the issuance or transfer |
|---|
| 1666 | | - | by the corporation or by any direct or indirect majority-owned |
|---|
| 1667 | | - | subsidiary of the corporation of any stock of the corporation or of such |
|---|
| 1668 | | - | subsidiary to the interested stockholder, except: |
|---|
| 1669 | | - | (i) Pursuant to the exercise, exchange or conversion of securities |
|---|
| 1670 | | - | exercisable for, exchangeable for or convertible into stock of such H Sub for SENATE BILL No. 244—page 29 |
|---|
| 1671 | | - | corporation or any such subsidiary which securities that were |
|---|
| 1672 | | - | outstanding prior to the time that the interested stockholder became |
|---|
| 1673 | | - | such the interested stockholder; |
|---|
| 1674 | | - | (ii) pursuant to a merger under K.S.A. 17-6701(g), and |
|---|
| 1675 | | - | amendments thereto; |
|---|
| 1676 | | - | (iii) pursuant to a dividend or distribution paid or made, or the |
|---|
| 1677 | | - | exercise, exchange or conversion of securities exercisable for, |
|---|
| 1678 | | - | exchangeable for or convertible into stock of such corporation or any |
|---|
| 1679 | | - | such subsidiary which security that is distributed, pro rata to all holders |
|---|
| 1680 | | - | of a class or series of stock of such corporation subsequent to the time |
|---|
| 1681 | | - | the interested stockholder became such the interested stockholder; |
|---|
| 1682 | | - | (iv) pursuant to an exchange offer by the corporation to purchase |
|---|
| 1683 | | - | stock made on the same terms to all holders of such stock; or |
|---|
| 1684 | | - | (v) any issuance or transfer of stock by the corporation; provided |
|---|
| 1685 | | - | however, except that in no case under subparagraph (C)(iii) through (v) |
|---|
| 1686 | | - | shall there be an increase in the interested stockholder's proportionate |
|---|
| 1687 | | - | share of the stock of any class or series of the corporation or of the |
|---|
| 1688 | | - | voting stock of the corporation; |
|---|
| 1689 | | - | (D) any transaction involving the corporation or any direct or |
|---|
| 1690 | | - | indirect majority-owned subsidiary of the corporation which that has |
|---|
| 1691 | | - | the effect, directly or indirectly, of increasing the proportionate share of |
|---|
| 1692 | | - | the stock of any class or series, or securities convertible into the stock |
|---|
| 1693 | | - | of any class or series, of the corporation or of any such subsidiary |
|---|
| 1694 | | - | which that is owned by the interested stockholder, except as a result of |
|---|
| 1695 | | - | immaterial changes due to fractional share adjustments or as a result of |
|---|
| 1696 | | - | any purchase or redemption of any shares of stock not caused, directly |
|---|
| 1697 | | - | or indirectly, by the interested stockholder; or |
|---|
| 1698 | | - | (E) any receipt by the interested stockholder of the benefit, |
|---|
| 1699 | | - | directly or indirectly, except proportionately as a stockholder of such |
|---|
| 1700 | | - | corporation, of any loans, advances, guarantees, pledges or other |
|---|
| 1701 | | - | financial benefits, other than those expressly permitted in |
|---|
| 1702 | | - | subparagraphs (A) through (D), provided by or through the corporation |
|---|
| 1703 | | - | or any direct or indirect majority-owned subsidiary. |
|---|
| 1704 | | - | (4) "Control," including the terms "controlling," "controlled by" |
|---|
| 1705 | | - | and "under common control with," means the possession, directly or |
|---|
| 1706 | | - | indirectly, of the power to direct or cause the direction of the |
|---|
| 1707 | | - | management and policies of a person, whether through the ownership |
|---|
| 1708 | | - | of voting stock, by contract or otherwise. A person who is the owner of |
|---|
| 1709 | | - | 20% or more of the outstanding voting stock of any corporation, |
|---|
| 1710 | | - | partnership, unincorporated association or other entity shall be |
|---|
| 1711 | | - | presumed to have control of such entity, in the absence of proof by a |
|---|
| 1712 | | - | preponderance of the evidence to the contrary, except that a |
|---|
| 1713 | | - | presumption of control shall not apply where such person holds voting |
|---|
| 1714 | | - | stock, in good faith and not for the purpose of circumventing this |
|---|
| 1715 | | - | section, as an agent, bank, broker, nominee, custodian or trustee for one |
|---|
| 1716 | | - | or more owners who do not individually or as a group have control of |
|---|
| 1717 | | - | such entity. |
|---|
| 1718 | | - | (5) (A) "Interested stockholder" means any person, other than the |
|---|
| 1719 | | - | corporation and any direct or indirect majority-owned subsidiary of the |
|---|
| 1720 | | - | corporation, that: |
|---|
| 1721 | | - | (i) Is the owner of 15% or more of the outstanding voting stock of |
|---|
| 1722 | | - | the corporation; or |
|---|
| 1723 | | - | (ii) is an affiliate or associate of the corporation and was the owner |
|---|
| 1724 | | - | of 15% or more of the outstanding voting stock of the corporation at |
|---|
| 1725 | | - | any time within the three-year period immediately prior to the date on |
|---|
| 1726 | | - | which when it is sought to be determined whether such person is an |
|---|
| 1727 | | - | interested stockholder, and the affiliates and associates of such person. |
|---|
| 1728 | | - | (B) The term "Interested stockholder" shall does not include: |
|---|
| 1729 | | - | (i) Any person who: H Sub for SENATE BILL No. 244—page 30 |
|---|
| 1730 | | - | (a) Owned shares in excess of the 15% limitation set forth herein |
|---|
| 1731 | | - | in this paragraph as of, or acquired such shares pursuant to a tender |
|---|
| 1732 | | - | offer commenced prior to July 1, 1989, or pursuant to an exchange |
|---|
| 1733 | | - | offer announced prior to such date and commenced within 90 days |
|---|
| 1734 | | - | thereafter and either: |
|---|
| 1735 | | - | (1) Continued to own shares in excess of such 15% limitation or |
|---|
| 1736 | | - | would have but for action by the corporation; or |
|---|
| 1737 | | - | (2) is an affiliate or associate of the corporation and so continued, |
|---|
| 1738 | | - | or so would have continued but for action by the corporation, to be the |
|---|
| 1739 | | - | owner of 15% or more of the outstanding voting stock of the |
|---|
| 1740 | | - | corporation at any time within the three-year period immediately prior |
|---|
| 1741 | | - | to the date on which when it is sought to be determined whether such a |
|---|
| 1742 | | - | person is an interested stockholder; or |
|---|
| 1743 | | - | (b) acquired such shares from a person described in subparagraph |
|---|
| 1744 | | - | (B)(i)(a) by gift, inheritance or in a transaction in which no |
|---|
| 1745 | | - | consideration was exchanged; or |
|---|
| 1746 | | - | (ii) any person whose ownership of shares in excess of the 15% |
|---|
| 1747 | | - | limitation set forth herein in this paragraph is the result of action taken |
|---|
| 1748 | | - | solely by the corporation; provided, except that such person shall be an |
|---|
| 1749 | | - | interested stockholder if thereafter such person acquires additional |
|---|
| 1750 | | - | shares of voting stock of the corporation, except as a result of further |
|---|
| 1751 | | - | corporate action not caused, directly or indirectly, by such person. |
|---|
| 1752 | | - | (C) For the purpose of determining whether a person is an |
|---|
| 1753 | | - | interested stockholder, the voting stock of the corporation deemed to be |
|---|
| 1754 | | - | outstanding shall include stock deemed to be owned by the person |
|---|
| 1755 | | - | through application of paragraph (9), but shall not include any other |
|---|
| 1756 | | - | unissued stock of such corporation which that may be issuable pursuant |
|---|
| 1757 | | - | to any agreement, arrangement or understanding, or upon exercise of |
|---|
| 1758 | | - | conversion rights, warrants or options, or otherwise. |
|---|
| 1759 | | - | (6) "Person" means any individual, corporation, partnership, |
|---|
| 1760 | | - | unincorporated association or other entity. |
|---|
| 1761 | | - | (7) "Stock" means, with respect to any corporation, capital stock |
|---|
| 1762 | | - | and, with respect to any other entity, any equity interest. |
|---|
| 1763 | | - | (8) "Voting stock" means, with respect to any corporation, stock of |
|---|
| 1764 | | - | any class or series entitled to vote generally in the election of directors |
|---|
| 1765 | | - | and, with respect to any entity that is not a corporation, any equity |
|---|
| 1766 | | - | interest entitled to vote generally in the election of the governing body |
|---|
| 1767 | | - | of such entity. Every reference to a percentage of voting stock shall |
|---|
| 1768 | | - | refer to such percentage of the votes of such voting stock. |
|---|
| 1769 | | - | (9) "Owner," including the terms "own" and "owned," when used |
|---|
| 1770 | | - | with respect to any stock, means a person that individually or with or |
|---|
| 1771 | | - | through any of its affiliates or associates: |
|---|
| 1772 | | - | (A) Beneficially owns such stock, directly or indirectly; |
|---|
| 1773 | | - | (B) has: (i) The right to acquire such stock, whether such right is |
|---|
| 1774 | | - | exercisable immediately or only after the passage of time, pursuant to |
|---|
| 1775 | | - | any agreement, arrangement or understanding, or upon the exercise of |
|---|
| 1776 | | - | conversion rights, exchange rights, warrants or options, or otherwise, |
|---|
| 1777 | | - | except that a person shall not be deemed the owner of stock tendered |
|---|
| 1778 | | - | pursuant to a tender or exchange offer made by such person or any of |
|---|
| 1779 | | - | such person's affiliates or associates until such tendered stock is |
|---|
| 1780 | | - | accepted for purchase or exchange; or (ii) the right to vote such stock |
|---|
| 1781 | | - | pursuant to any agreement, arrangement or understanding, except that a |
|---|
| 1782 | | - | person shall not be deemed the owner of any stock because of such |
|---|
| 1783 | | - | person's right to vote such stock if the agreement, arrangement or |
|---|
| 1784 | | - | understanding to vote such stock arises solely from a revocable proxy |
|---|
| 1785 | | - | or consent given in response to a proxy or consent solicitation made to |
|---|
| 1786 | | - | 10 or more persons; or |
|---|
| 1787 | | - | (C) has any agreement, arrangement or understanding for the |
|---|
| 1788 | | - | purpose of acquiring, holding, voting, except voting pursuant to a H Sub for SENATE BILL No. 244—page 31 |
|---|
| 1789 | | - | revocable proxy or consent as described in subparagraph (B)(ii), or |
|---|
| 1790 | | - | disposing of such stock with any other person that beneficially owns, or |
|---|
| 1791 | | - | whose affiliates or associates beneficially own, directly or indirectly, |
|---|
| 1792 | | - | such stock. |
|---|
| 1793 | | - | (d) No provision of an articles of incorporation or bylaw shall |
|---|
| 1794 | | - | require, for any vote of stockholders required by this section, a greater |
|---|
| 1795 | | - | vote of stockholders than that specified in this section. |
|---|
| 1796 | | - | (e) This section amends and recodifies the Kansas business |
|---|
| 1797 | | - | combinations with interested shareholders act. Any reference in a |
|---|
| 1798 | | - | corporation's articles of incorporation or bylaws to the Kansas business |
|---|
| 1799 | | - | combinations with interested shareholders act shall be deemed to refer |
|---|
| 1800 | | - | to this section. |
|---|
| 1801 | | - | (f) This section shall be part of and supplemental to article 64 of |
|---|
| 1802 | | - | chapter 17 of the Kansas Statutes Annotated, and amendments thereto. |
|---|
| 1803 | | - | Sec. 20. K.S.A. 2022 Supp. 17-6428 is hereby amended to read as |
|---|
| 1804 | | - | follows: 17-6428. (a) Subject to subsection (f), no defective corporate |
|---|
| 1805 | | - | act or putative stock shall be void or voidable solely as a result of a |
|---|
| 1806 | | - | failure of authorization if ratified as provided in this section or |
|---|
| 1807 | | - | validated by the district court in a proceeding brought under K.S.A. |
|---|
| 1808 | | - | 2022 Supp. 17-6429, and amendments thereto. |
|---|
| 1809 | | - | (b) (1) In order to ratify one or more defective corporate acts |
|---|
| 1810 | | - | pursuant to this section, other than the ratification of an election of the |
|---|
| 1811 | | - | initial board of directors pursuant to subsection (b)(2) paragraph (3), |
|---|
| 1812 | | - | the board of directors of the corporation shall adopt resolutions stating: |
|---|
| 1813 | | - | (A) The defective corporate act or acts to be ratified; |
|---|
| 1814 | | - | (B) the date of each defective corporate act or acts; |
|---|
| 1815 | | - | (C) if such defective corporate act or acts involved the issuance of |
|---|
| 1816 | | - | shares of putative stock, the number and type of shares of putative |
|---|
| 1817 | | - | stock issued and the date or dates upon which when such putative |
|---|
| 1818 | | - | shares were purported to have been issued; |
|---|
| 1819 | | - | (D) the nature of the failure of authorization in respect of each |
|---|
| 1820 | | - | defective corporate act to be ratified; and |
|---|
| 1821 | | - | (E) that the board of directors approves the ratification of the |
|---|
| 1822 | | - | defective corporate act or acts. |
|---|
| 1823 | | - | (2) Such resolutions may also provide that, at any time before the |
|---|
| 1824 | | - | validation effective time in respect to any defective corporate act set |
|---|
| 1825 | | - | forth therein in such resolution, notwithstanding the approval of the |
|---|
| 1826 | | - | ratification of such defective corporate act by stockholders, the board of |
|---|
| 1827 | | - | directors may abandon the ratification of such defective corporate act |
|---|
| 1828 | | - | without further action of the stockholders. The quorum and voting |
|---|
| 1829 | | - | requirements applicable to the ratification by the board of directors of |
|---|
| 1830 | | - | any defective corporate act shall be the quorum and voting |
|---|
| 1831 | | - | requirements applicable to the type of defective corporate act proposed |
|---|
| 1832 | | - | to be ratified at the time the board adopts the resolutions ratifying the |
|---|
| 1833 | | - | defective corporate act, except that if the articles of incorporation or |
|---|
| 1834 | | - | bylaws of the corporation, any plan or agreement to which the |
|---|
| 1835 | | - | corporation was a party or any provision of the Kansas general |
|---|
| 1836 | | - | corporation this code, in each case as in effect as of the time of the |
|---|
| 1837 | | - | defective corporate act, would have required a larger number or portion |
|---|
| 1838 | | - | of directors or of specified directors for a quorum to be present or to |
|---|
| 1839 | | - | approve the defective corporate act, such larger number or portion of |
|---|
| 1840 | | - | such directors or such specified directors shall be required for a quorum |
|---|
| 1841 | | - | to be present or to adopt the resolutions to ratify the defective corporate |
|---|
| 1842 | | - | act, as applicable, except that the presence or approval of any director |
|---|
| 1843 | | - | elected, appointed or nominated by holders of any class or series of |
|---|
| 1844 | | - | which no shares are then outstanding, or by any person that is no longer |
|---|
| 1845 | | - | a stockholder, shall not be required. |
|---|
| 1846 | | - | (2)(3) In order to ratify a defective corporate act in respect of the |
|---|
| 1847 | | - | election of the initial board of directors of the corporation pursuant to H Sub for SENATE BILL No. 244—page 32 |
|---|
| 1848 | | - | K.S.A. 17-6008, and amendments thereto, a majority of the persons |
|---|
| 1849 | | - | who, at the time the resolutions required by this paragraph are adopted, |
|---|
| 1850 | | - | are exercising the powers of directors under claim and color of an |
|---|
| 1851 | | - | election or appointment as such may adopt resolutions stating: |
|---|
| 1852 | | - | (A) The name of the person or persons who first took action in the |
|---|
| 1853 | | - | name of the corporation as the initial board of directors of the |
|---|
| 1854 | | - | corporation; |
|---|
| 1855 | | - | (B) the earlier of the date on which when such persons first took |
|---|
| 1856 | | - | such action or were purported to have been elected as the initial board |
|---|
| 1857 | | - | of directors; and |
|---|
| 1858 | | - | (C) that the ratification of the election of such person or persons as |
|---|
| 1859 | | - | the initial board of directors is approved. |
|---|
| 1860 | | - | (c) Each defective corporate act ratified pursuant to subsection (b) |
|---|
| 1861 | | - | (1) shall be submitted to stockholders for approval as provided in |
|---|
| 1862 | | - | subsection (d), unless: |
|---|
| 1863 | | - | (1) (A) No other provision of the Kansas general corporation this |
|---|
| 1864 | | - | code, and no provision of the articles of incorporation or bylaws of the |
|---|
| 1865 | | - | corporation, or of any plan or agreement to which the corporation is a |
|---|
| 1866 | | - | party, would have required stockholder approval of such defective |
|---|
| 1867 | | - | corporate act to be ratified, either at the time of such defective |
|---|
| 1868 | | - | corporate act or at the time the board of directors adopts the resolutions |
|---|
| 1869 | | - | ratifying such defective corporate act pursuant to subsection (b)(1); and |
|---|
| 1870 | | - | (2)(B) such defective corporate act did not result from a failure to |
|---|
| 1871 | | - | comply with K.S.A. 2022 Supp. 17-6427, and amendments thereto; or |
|---|
| 1872 | | - | (2) only with respect to defective corporate acts ratified or to be |
|---|
| 1873 | | - | ratified pursuant to resolutions adopted by a board of directors on or |
|---|
| 1874 | | - | after July 1, 2023, as of the record date for determining the |
|---|
| 1875 | | - | stockholders entitled to vote on the ratification of such defective |
|---|
| 1876 | | - | corporate act, there are no shares of valid stock outstanding and |
|---|
| 1877 | | - | entitled to vote thereon, regardless of whether there then exists any |
|---|
| 1878 | | - | shares of putative stock. |
|---|
| 1879 | | - | (d) (1) If the ratification of a defective corporate act is required to |
|---|
| 1880 | | - | be submitted to stockholders for approval pursuant to subsection (c), |
|---|
| 1881 | | - | due notice of the time, place, if any, and purpose of the meeting shall be |
|---|
| 1882 | | - | given at least 20 days before the date of the meeting to each holder of |
|---|
| 1883 | | - | valid stock and putative stock, whether voting or nonvoting, at the |
|---|
| 1884 | | - | postal address of such holder as it appears or most recently appeared, |
|---|
| 1885 | | - | as appropriate, on the records of the corporation. The notice also shall |
|---|
| 1886 | | - | be given to the holders of record of valid stock and putative stock, |
|---|
| 1887 | | - | whether voting or nonvoting, as of the time of the defective corporate |
|---|
| 1888 | | - | act, or, in the case of any defective corporate act that involved the |
|---|
| 1889 | | - | establishment of a record date for notice of or voting at any meeting of |
|---|
| 1890 | | - | stockholders, for action by consent of stockholders in lieu of a meeting, |
|---|
| 1891 | | - | or for any other purpose, the record date for notice of or voting at such |
|---|
| 1892 | | - | meeting, the record date for action by consent or the record date for |
|---|
| 1893 | | - | such other action, as the case may be, other than holders whose |
|---|
| 1894 | | - | identities or postal addresses cannot be determined from the records of |
|---|
| 1895 | | - | the corporation. The notice shall contain a copy of the resolutions |
|---|
| 1896 | | - | adopted by the board of directors pursuant to subsection (b)(1) or the |
|---|
| 1897 | | - | information required by subsection (b)(1)(A) through (E) and a |
|---|
| 1898 | | - | statement that any claim that the defective corporate act or putative |
|---|
| 1899 | | - | stock ratified hereunder is void or voidable due to the failure of |
|---|
| 1900 | | - | authorization, or that the district court should declare in its discretion |
|---|
| 1901 | | - | that a ratification in accordance with this section not be effective or be |
|---|
| 1902 | | - | effective only on certain conditions must be brought within 120 days |
|---|
| 1903 | | - | from the applicable validation effective time. At such meeting, the |
|---|
| 1904 | | - | quorum and voting requirements applicable to the ratification of such |
|---|
| 1905 | | - | defective corporate act shall be the quorum and voting requirements |
|---|
| 1906 | | - | applicable to the type of defective corporate act proposed to be ratified H Sub for SENATE BILL No. 244—page 33 |
|---|
| 1907 | | - | at the time of the approval of the ratification, except that: |
|---|
| 1908 | | - | (1)(A) If the articles of incorporation or bylaws of the corporation, |
|---|
| 1909 | | - | any plan or agreement to which the corporation was a party or any |
|---|
| 1910 | | - | provision of the Kansas general corporation this code in effect as of the |
|---|
| 1911 | | - | time of the defective corporate act would have required a larger number |
|---|
| 1912 | | - | or portion of stock or of any class or series thereof or of specified |
|---|
| 1913 | | - | stockholders for a quorum to be present or to approve the defective |
|---|
| 1914 | | - | corporate act, the presence or approval of such larger number or portion |
|---|
| 1915 | | - | of stock or of such class or series thereof or of such specified |
|---|
| 1916 | | - | stockholders shall be required for a quorum to be present or to approve |
|---|
| 1917 | | - | the ratification of the defective corporate act, as applicable, except that |
|---|
| 1918 | | - | the presence or approval of shares of any class or series of which no |
|---|
| 1919 | | - | shares are then outstanding, or of any person that is no longer a |
|---|
| 1920 | | - | stockholder, shall not be required; |
|---|
| 1921 | | - | (2)(B) the approval by stockholders of the ratification of the |
|---|
| 1922 | | - | election of a director shall require the affirmative vote of the majority |
|---|
| 1923 | | - | of shares present at the meeting and entitled to vote on the election of |
|---|
| 1924 | | - | such director, except that if the articles of incorporation or bylaws of |
|---|
| 1925 | | - | the corporation then in effect or in effect at the time of the defective |
|---|
| 1926 | | - | election require or required a larger number or portion of stock or of |
|---|
| 1927 | | - | any class or series thereof or of specified stockholders to elect such |
|---|
| 1928 | | - | director, the affirmative vote of such larger number or portion of stock |
|---|
| 1929 | | - | or of any class or series thereof or of such specified stockholders shall |
|---|
| 1930 | | - | be required to ratify the election of such director, except that the |
|---|
| 1931 | | - | presence or approval of shares of any class or series of which no shares |
|---|
| 1932 | | - | are then outstanding, or of any person that is no longer a stockholder, |
|---|
| 1933 | | - | shall not be required; and |
|---|
| 1934 | | - | (3)(C) in the event of a failure of authorization resulting from |
|---|
| 1935 | | - | failure to comply with the provisions of K.S.A. 2022 Supp. 17-6427, |
|---|
| 1936 | | - | and amendments thereto, the ratification of the defective corporate act |
|---|
| 1937 | | - | shall require the vote set forth in K.S.A. 2022 Supp. 17-6427(a)(3), and |
|---|
| 1938 | | - | amendments thereto, regardless of whether such vote would have |
|---|
| 1939 | | - | otherwise been required. |
|---|
| 1940 | | - | (2) Shares of putative stock on the record date for determining |
|---|
| 1941 | | - | stockholders entitled to vote on any matter submitted to stockholders |
|---|
| 1942 | | - | pursuant to subsection (c), and without giving effect to any ratification |
|---|
| 1943 | | - | that becomes effective after such record date, shall neither be entitled to |
|---|
| 1944 | | - | vote nor counted for quorum purposes in any vote to ratify any |
|---|
| 1945 | | - | defective corporate act. |
|---|
| 1946 | | - | (e) If a defective corporate act ratified pursuant to this section |
|---|
| 1947 | | - | would have required under any other section of the Kansas general |
|---|
| 1948 | | - | corporation this code the filing of a document in accordance with |
|---|
| 1949 | | - | K.S.A. 2022 Supp. 17-7910, and amendments thereto, then, whether or |
|---|
| 1950 | | - | not a document was previously filed in respect to such defective |
|---|
| 1951 | | - | corporate act and in lieu of filing the document otherwise required by |
|---|
| 1952 | | - | provisions of the Kansas general corporation this code, the corporation |
|---|
| 1953 | | - | shall file a certificate of validation with respect to such defective |
|---|
| 1954 | | - | corporate act in accordance with K.S.A. 2022 Supp. 17-7910, and |
|---|
| 1955 | | - | amendments thereto. A separate certificate of validation shall be |
|---|
| 1956 | | - | required for each defective corporate act requiring the filing of a |
|---|
| 1957 | | - | certificate of validation under this section, except that two or more |
|---|
| 1958 | | - | defective corporate acts may be included in a single certificate of |
|---|
| 1959 | | - | validation if the corporation filed, or to comply with provisions of the |
|---|
| 1960 | | - | Kansas general corporation this code, would have filed, a single |
|---|
| 1961 | | - | document under another provision of the Kansas general corporation |
|---|
| 1962 | | - | this code to effect such acts, and two or more overissues of shares of |
|---|
| 1963 | | - | any class, classes or series of stock may be included in a single |
|---|
| 1964 | | - | certificate of validation, provided except that the increase in the number |
|---|
| 1965 | | - | of authorized shares of each such class or series set forth in the H Sub for SENATE BILL No. 244—page 34 |
|---|
| 1966 | | - | certificate of validation shall be effective as of the date of the first such |
|---|
| 1967 | | - | overissue. The certificate of validation shall set forth: |
|---|
| 1968 | | - | (1) Each defective corporate act that is the subject of the |
|---|
| 1969 | | - | certificate of validation, including, in the case of any defective |
|---|
| 1970 | | - | corporate act involving the issuance of shares of putative stock, the |
|---|
| 1971 | | - | number and type of shares of putative stock issued and the date or dates |
|---|
| 1972 | | - | upon which when such putative shares were purported to have been |
|---|
| 1973 | | - | issued, the date of such defective corporate act, and the nature of the |
|---|
| 1974 | | - | failure of authorization in respect to such defective corporate act; |
|---|
| 1975 | | - | (2) a statement that such defective corporate act was ratified in |
|---|
| 1976 | | - | accordance with this section, including the date on which when the |
|---|
| 1977 | | - | board of directors ratified such defective corporate act and the date, if |
|---|
| 1978 | | - | any, on which when the stockholders approved the ratification of such |
|---|
| 1979 | | - | defective corporate act; and |
|---|
| 1980 | | - | (3) the information required by one of the following |
|---|
| 1981 | | - | subparagraphs: |
|---|
| 1982 | | - | (A) If a document was previously filed under K.S.A. 2022 Supp. |
|---|
| 1983 | | - | 17-7910, and amendments thereto, in respect to such defective |
|---|
| 1984 | | - | corporate act and no changes to such document are required to give |
|---|
| 1985 | | - | effect to such defective corporate act in accordance with this section, |
|---|
| 1986 | | - | the certificate of validation shall set forth: |
|---|
| 1987 | | - | (i) The name, title and filing date of the document previously filed |
|---|
| 1988 | | - | and of any certificate of correction thereto; and |
|---|
| 1989 | | - | (ii) a statement that a copy of the document previously filed, |
|---|
| 1990 | | - | together with any certificate of correction thereto, is attached as an |
|---|
| 1991 | | - | exhibit to the certificate of validation; |
|---|
| 1992 | | - | (B) if a document was previously filed under K.S.A. 2022 Supp. |
|---|
| 1993 | | - | 17-7910, and amendments thereto, in respect to the defective corporate |
|---|
| 1994 | | - | act and such document requires any change to give effect to the |
|---|
| 1995 | | - | defective corporate act in accordance with this section, including a |
|---|
| 1996 | | - | change to the date and time of the effectiveness of such certificate, the |
|---|
| 1997 | | - | certificate of validation shall set forth: |
|---|
| 1998 | | - | (i) The name, title and filing date of the document so previously |
|---|
| 1999 | | - | filed and of any certificate of correction thereto; |
|---|
| 2000 | | - | (ii) a statement that a document containing all of the information |
|---|
| 2001 | | - | required to be included under the applicable section or sections of the |
|---|
| 2002 | | - | Kansas general corporation this code to give effect to the defective |
|---|
| 2003 | | - | corporate act is attached as an exhibit to the certificate of validation; |
|---|
| 2004 | | - | and |
|---|
| 2005 | | - | (iii) the date that such certificate shall be deemed to have become |
|---|
| 2006 | | - | effective pursuant to this section; or |
|---|
| 2007 | | - | (C) if a document was not previously filed under K.S.A. 2022 |
|---|
| 2008 | | - | Supp. 17-7910, and amendments thereto, in respect to the defective |
|---|
| 2009 | | - | corporate act and the defective corporate act ratified pursuant to this |
|---|
| 2010 | | - | section would have required under any other section of the Kansas |
|---|
| 2011 | | - | general corporation this code the filing of a document in accordance |
|---|
| 2012 | | - | with K.S.A. 2022 Supp. 17-7910, and amendments thereto, the |
|---|
| 2013 | | - | certificate of validation shall set forth: |
|---|
| 2014 | | - | (i) A statement that a document containing all of the information |
|---|
| 2015 | | - | required to be included under the applicable section or sections of the |
|---|
| 2016 | | - | Kansas general corporation this code to give effect to the defective |
|---|
| 2017 | | - | corporate act is attached as an exhibit to the certificate of validation; |
|---|
| 2018 | | - | and |
|---|
| 2019 | | - | (ii) the date and time that such certificate shall be deemed to have |
|---|
| 2020 | | - | become effective pursuant to this section. |
|---|
| 2021 | | - | (4) A document attached to a certificate of validation pursuant to |
|---|
| 2022 | | - | paragraph (3)(B) or (C) need not be separately executed and |
|---|
| 2023 | | - | acknowledged and need not include any statement required by any |
|---|
| 2024 | | - | other section of the Kansas general corporation this code that such H Sub for SENATE BILL No. 244—page 35 |
|---|
| 2025 | | - | document has been approved and adopted in accordance with the |
|---|
| 2026 | | - | provisions of such other section. |
|---|
| 2027 | | - | (f) From and after the validation effective time, unless otherwise |
|---|
| 2028 | | - | determined in an action brought pursuant to K.S.A. 2022 Supp. 17- |
|---|
| 2029 | | - | 6429, and amendments thereto: |
|---|
| 2030 | | - | (1) Subject to the last sentence of subsection (d), each defective |
|---|
| 2031 | | - | corporate act ratified in accordance with this section shall no longer be |
|---|
| 2032 | | - | deemed void or voidable as a result of a the failure of authorization |
|---|
| 2033 | | - | described in the resolutions adopted pursuant to subsection (b) and such |
|---|
| 2034 | | - | effect shall be retroactive to the time of the defective corporate act; and |
|---|
| 2035 | | - | (2) subject to the last sentence of subsection (d), each share or |
|---|
| 2036 | | - | fraction of a share of putative stock issued or purportedly issued |
|---|
| 2037 | | - | pursuant to any such defective corporate act shall no longer be deemed |
|---|
| 2038 | | - | void or voidable and shall be deemed to be an identical share or |
|---|
| 2039 | | - | fraction of a share of outstanding stock as of the time it was |
|---|
| 2040 | | - | purportedly issued. |
|---|
| 2041 | | - | (g) (1) In respect of each defective corporate act ratified by the |
|---|
| 2042 | | - | board of directors pursuant to subsection (b), prompt notice of the |
|---|
| 2043 | | - | ratification shall be given to all holders of valid stock and putative |
|---|
| 2044 | | - | stock, whether voting or nonvoting, as of the date the board of directors |
|---|
| 2045 | | - | adopts the resolutions approving such defective corporate act, or as of a |
|---|
| 2046 | | - | date within 60 days after such date of adoption, as established by the |
|---|
| 2047 | | - | board of directors, at the postal address of such holder as it appears or |
|---|
| 2048 | | - | most recently appeared, as appropriate, on the records of the |
|---|
| 2049 | | - | corporation. The notice also shall be given to the holders of record of |
|---|
| 2050 | | - | valid stock and putative stock, whether voting or nonvoting, as of the |
|---|
| 2051 | | - | time of the defective corporate act, other than holders whose identities |
|---|
| 2052 | | - | or postal addresses cannot be determined from the records of the |
|---|
| 2053 | | - | corporation. The notice shall contain a copy of the resolutions adopted |
|---|
| 2054 | | - | pursuant to subsection (b) or the information specified in subsection (b) |
|---|
| 2055 | | - | (1)(A) through (E) or subsection (b)(2)(A) (b)(3)(A) through (C), as |
|---|
| 2056 | | - | applicable, and a statement that any claim that the defective corporate |
|---|
| 2057 | | - | act or putative stock ratified hereunder is void or voidable due to the |
|---|
| 2058 | | - | failure of authorization, or that the district court should declare in its |
|---|
| 2059 | | - | discretion that a ratification in accordance with this section not be |
|---|
| 2060 | | - | effective or be effective only on certain conditions must be brought |
|---|
| 2061 | | - | within 120 days from the later of the validation effective time or the |
|---|
| 2062 | | - | time at which when the notice required by this subsection is given. |
|---|
| 2063 | | - | (2) Notwithstanding the provisions of paragraph (1): |
|---|
| 2064 | | - | (A) No such notice shall be required if notice of the ratification of |
|---|
| 2065 | | - | the defective corporate act is to be given in accordance with subsection |
|---|
| 2066 | | - | (d); and |
|---|
| 2067 | | - | (B) in the case of a corporation that has a class of stock listed on a |
|---|
| 2068 | | - | national securities exchange, the notice required by this subsection and |
|---|
| 2069 | | - | subsection (d)(1), may be deemed given if disclosed in a document |
|---|
| 2070 | | - | publicly filed by the corporation with the securities and exchange |
|---|
| 2071 | | - | commission pursuant to section 13, 14 or 15(d) of the securities |
|---|
| 2072 | | - | exchange act of 1934, as amended, 15 U.S.C. §§ 78m, 78n or 78o(d) |
|---|
| 2073 | | - | and the rules and regulations promulgated thereunder, or the |
|---|
| 2074 | | - | corresponding provisions of any subsequent federal securities laws, |
|---|
| 2075 | | - | rules or regulations. |
|---|
| 2076 | | - | (3) If any defective corporate act has been approved by |
|---|
| 2077 | | - | stockholders acting pursuant to K.S.A. 17-6518, and amendments |
|---|
| 2078 | | - | thereto, the notice required by this subsection may be included in any |
|---|
| 2079 | | - | notice required to be given pursuant to K.S.A. 17-6518(e), and |
|---|
| 2080 | | - | amendments thereto, and, if so given, shall be sent to the stockholders |
|---|
| 2081 | | - | entitled thereto under K.S.A. 17-6518(e), and amendments thereto, and |
|---|
| 2082 | | - | to all holders of valid and putative stock to whom notice would be |
|---|
| 2083 | | - | required under this subsection if the defective corporate act had been H Sub for SENATE BILL No. 244—page 36 |
|---|
| 2084 | | - | approved at a meeting other than any stockholder who approved the |
|---|
| 2085 | | - | action by consent in lieu of a meeting pursuant to K.S.A. 17-6518, and |
|---|
| 2086 | | - | amendments thereto, or any holder of putative stock who otherwise |
|---|
| 2087 | | - | consented thereto in writing. Solely for purposes of subsection (d) and |
|---|
| 2088 | | - | this subsection, notice to holders of putative stock, and notice to |
|---|
| 2089 | | - | holders of valid stock and putative stock as of the time of the defective |
|---|
| 2090 | | - | corporate act, shall be treated as notice to holders of valid stock for |
|---|
| 2091 | | - | purposes of K.S.A. 17-6512, 17-6518, 17-6519, 17-6520, 17-6522 and |
|---|
| 2092 | | - | 17-6523, and amendments thereto. |
|---|
| 2093 | | - | (h) As used in this section and in K.S.A. 2022 Supp. 17-6429, and |
|---|
| 2094 | | - | amendments thereto, only, the terms: |
|---|
| 2095 | | - | (1) "Defective corporate act" means an overissue, an election or |
|---|
| 2096 | | - | appointment of directors that is void or voidable due to a failure of |
|---|
| 2097 | | - | authorization, or any act or transaction purportedly taken by or on |
|---|
| 2098 | | - | behalf of the corporation that is, and at the time such act or transaction |
|---|
| 2099 | | - | was purportedly taken would have been, within the power of a |
|---|
| 2100 | | - | corporation under the provisions of article 61 of chapter 17 of the |
|---|
| 2101 | | - | Kansas Statutes Annotated, and amendments thereto, without regard to |
|---|
| 2102 | | - | the failure of authorization identified in subsection (b)(1)(D), but is |
|---|
| 2103 | | - | void or voidable due to a failure of authorization. |
|---|
| 2104 | | - | (2) "Failure of authorization" means: |
|---|
| 2105 | | - | (A) The failure to authorize or effect an act or transaction in |
|---|
| 2106 | | - | compliance with the provisions of this code, the articles of |
|---|
| 2107 | | - | incorporation or bylaws of the corporation, or any plan or agreement to |
|---|
| 2108 | | - | which the corporation is a party or the disclosure set forth in any proxy |
|---|
| 2109 | | - | or consent solicitation statement, if and to the extent such failure would |
|---|
| 2110 | | - | render such act or transaction void or voidable; or |
|---|
| 2111 | | - | (B) the failure of the board of directors or any officer of the |
|---|
| 2112 | | - | corporation to authorize or approve any act or transaction taken by or |
|---|
| 2113 | | - | on behalf of the corporation that would have required for its due |
|---|
| 2114 | | - | authorization the approval of the board of directors or such officer. |
|---|
| 2115 | | - | (3) "Overissue" means the purported issuance of: |
|---|
| 2116 | | - | (A) Shares of capital stock of a class or series in excess of the |
|---|
| 2117 | | - | number of shares of such class or series the corporation has the power |
|---|
| 2118 | | - | to issue under K.S.A. 17-6411, and amendments thereto, at the time of |
|---|
| 2119 | | - | such issuance; or |
|---|
| 2120 | | - | (B) shares of any class or series of capital stock that is not then |
|---|
| 2121 | | - | authorized for issuance by the articles of incorporation of the |
|---|
| 2122 | | - | corporation. |
|---|
| 2123 | | - | (4) "Putative stock" means the shares of any class or series of |
|---|
| 2124 | | - | capital stock of the corporation, including shares issued upon exercise |
|---|
| 2125 | | - | of options, rights, warrants or other securities convertible into shares of |
|---|
| 2126 | | - | capital stock of the corporation, or interests with respect thereto that |
|---|
| 2127 | | - | were created or issued pursuant to a defective corporate act, that: |
|---|
| 2128 | | - | (A) But for any failure of authorization, would constitute valid |
|---|
| 2129 | | - | stock; or |
|---|
| 2130 | | - | (B) cannot be determined by the board of directors to be valid |
|---|
| 2131 | | - | stock. |
|---|
| 2132 | | - | (5) "Time of the defective corporate act" means the date and time |
|---|
| 2133 | | - | the defective corporate act was purported to have been taken. |
|---|
| 2134 | | - | (6) "Validation effective time" with respect to any defective |
|---|
| 2135 | | - | corporate act ratified pursuant to this section means the latest of: |
|---|
| 2136 | | - | (A) The time at which when the defective corporate act submitted |
|---|
| 2137 | | - | to the stockholders for approval pursuant to subsection (c) is approved |
|---|
| 2138 | | - | by such stockholders, or if no such vote of stockholders is required to |
|---|
| 2139 | | - | approve the ratification of the defective corporate act, the time at which |
|---|
| 2140 | | - | when the board of directors adopts the resolutions required by |
|---|
| 2141 | | - | subsection (b)(1) or (b)(2) (b); |
|---|
| 2142 | | - | (B) where no certificate of validation is required to be filed H Sub for SENATE BILL No. 244—page 37 |
|---|
| 2143 | | - | pursuant to subsection (e), the time, if any, specified by the board of |
|---|
| 2144 | | - | directors in the resolutions adopted pursuant to subsection (b)(1) or (b) |
|---|
| 2145 | | - | (2), which time (b) shall not precede the time at which when such |
|---|
| 2146 | | - | resolutions are adopted; and |
|---|
| 2147 | | - | (C) the time at which when any certificate of validation filed |
|---|
| 2148 | | - | pursuant to subsection (e) shall become effective in accordance with |
|---|
| 2149 | | - | K.S.A. 2022 Supp. 17-7911, and amendments thereto. |
|---|
| 2150 | | - | (7) "Valid stock" means the shares of any class or series of capital |
|---|
| 2151 | | - | stock of the corporation that have been duly authorized and validly |
|---|
| 2152 | | - | issued in accordance with the Kansas general corporation this code. |
|---|
| 2153 | | - | (i) In the absence of actual fraud in the transaction, the judgment |
|---|
| 2154 | | - | of the board of directors that shares of stock are valid stock or putative |
|---|
| 2155 | | - | stock shall be conclusive, unless otherwise determined by the district |
|---|
| 2156 | | - | court in a proceeding brought pursuant to K.S.A. 2022 Supp. 17-6429, |
|---|
| 2157 | | - | and amendments thereto. |
|---|
| 2158 | | - | (i)(j) Ratification under this section or validation under K.S.A. |
|---|
| 2159 | | - | 2022 Supp. 17-6429, and amendments thereto, shall not be deemed to |
|---|
| 2160 | | - | be the exclusive means of ratifying or validating any act or transaction |
|---|
| 2161 | | - | taken by or on behalf of the corporation, including any defective |
|---|
| 2162 | | - | corporate act, or any issuance of stock, including any putative stock, or |
|---|
| 2163 | | - | of adopting or endorsing any act or transaction taken by or in the name |
|---|
| 2164 | | - | of the corporation prior to the commencement of its existence, and the |
|---|
| 2165 | | - | absence or failure of ratification in accordance with either this section |
|---|
| 2166 | | - | or validation under K.S.A. 2022 Supp. 17-6429, and amendments |
|---|
| 2167 | | - | thereto, shall not, of itself, affect the validity or effectiveness of any act |
|---|
| 2168 | | - | or transaction or the issuance of any stock properly ratified under |
|---|
| 2169 | | - | common law or otherwise, nor shall it create a presumption that any |
|---|
| 2170 | | - | such act or transaction is or was a defective corporate act or that such |
|---|
| 2171 | | - | stock is void or voidable. |
|---|
| 2172 | | - | (j) This section shall be part of and supplemental to article 64 of |
|---|
| 2173 | | - | chapter 17 of the Kansas Statutes Annotated, and amendments thereto. |
|---|
| 2174 | | - | Sec. 21. K.S.A. 2022 Supp. 17-6502 is hereby amended to read as |
|---|
| 2175 | | - | follows: 17-6502. (a) Unless otherwise provided in the articles of |
|---|
| 2176 | | - | incorporation and subject to the provisions of K.S.A. 17-6503, and |
|---|
| 2177 | | - | amendments thereto, each stockholder shall be entitled to one vote for |
|---|
| 2178 | | - | each share of capital stock held by such stockholder. If the articles of |
|---|
| 2179 | | - | incorporation provide for more or less than one vote for any share on |
|---|
| 2180 | | - | any matter, every reference in this code to a majority or other |
|---|
| 2181 | | - | proportion of stock shall refer to such majority or other proportion of |
|---|
| 2182 | | - | the votes of such stock. |
|---|
| 2183 | | - | (b) Each stockholder entitled to vote at a meeting of stockholders |
|---|
| 2184 | | - | or to express consent or dissent to corporate action in writing without a |
|---|
| 2185 | | - | meeting may authorize another person or persons to act for the |
|---|
| 2186 | | - | stockholder by proxy as provided in this subsection, but no such proxy |
|---|
| 2187 | | - | shall be voted or acted upon after three years from its date, unless the |
|---|
| 2188 | | - | proxy provides for a longer period. |
|---|
| 2189 | | - | (c) Without limiting the manner in which a stockholder may |
|---|
| 2190 | | - | authorize another person or persons to act for such stockholder as |
|---|
| 2191 | | - | proxy pursuant to subsection (b), the following shall constitute a valid |
|---|
| 2192 | | - | means by which a stockholder may grant such authority: |
|---|
| 2193 | | - | (1) A stockholder, or such stockholder's authorized representative |
|---|
| 2194 | | - | or agent, may execute a writing document authorizing another person |
|---|
| 2195 | | - | or persons to act for such stockholder as proxy. Execution may be |
|---|
| 2196 | | - | accomplished by the stockholder or the stockholder's authorized officer, |
|---|
| 2197 | | - | director, employee or agent signing the writing or causing the |
|---|
| 2198 | | - | stockholder's signature to be affixed to the writing by any reasonable |
|---|
| 2199 | | - | means, including, but not limited to, facsimile signature; and |
|---|
| 2200 | | - | (2) a stockholder may authorize another person or persons to act |
|---|
| 2201 | | - | for such stockholder as proxy by transmitting, or authorizing the H Sub for SENATE BILL No. 244—page 38 |
|---|
| 2202 | | - | transmission of, a means of an electronic transmission, including |
|---|
| 2203 | | - | telephonic transmission, to the person who will be the holder of the |
|---|
| 2204 | | - | proxy or to a proxy solicitation firm, proxy support service |
|---|
| 2205 | | - | organization, or like agent duly authorized by the person who will be |
|---|
| 2206 | | - | the holder of the proxy to receive the transmission, provided that. Any |
|---|
| 2207 | | - | such electronic transmission must either set forth or be submitted with |
|---|
| 2208 | | - | information from which it can be determined that the electronic |
|---|
| 2209 | | - | transmission was authorized by the stockholder. If it is determined that |
|---|
| 2210 | | - | such electronic transmissions are valid, the inspectors or, if there are no |
|---|
| 2211 | | - | inspectors, such other persons making that determination shall specify |
|---|
| 2212 | | - | the information upon which they relied; and |
|---|
| 2213 | | - | (3) the authorization of a person to act as a proxy may be |
|---|
| 2214 | | - | documented, signed and delivered in accordance with section 1, and |
|---|
| 2215 | | - | amendments thereto. Such authorization shall set forth, or be delivered |
|---|
| 2216 | | - | with information enabling the corporation to determine, the identity of |
|---|
| 2217 | | - | the stockholder granting such authorization. |
|---|
| 2218 | | - | (d) A copy, facsimile telecommunication, or other reliable |
|---|
| 2219 | | - | reproduction of the writing or document, including any electronic |
|---|
| 2220 | | - | transmission, authorized under subsections (c)(1) and (c)(2) may be |
|---|
| 2221 | | - | substituted for the original writing or transmission document for any |
|---|
| 2222 | | - | purpose for which the original writing or transmission document could |
|---|
| 2223 | | - | be used, except that such copy, facsimile telecommunication or other |
|---|
| 2224 | | - | reproduction shall be a complete reproduction of the entire original |
|---|
| 2225 | | - | writing or transmission document. |
|---|
| 2226 | | - | (e) A duly executed proxy shall be irrevocable if it states that it is |
|---|
| 2227 | | - | irrevocable and if, and only as long as, it is coupled with an interest |
|---|
| 2228 | | - | sufficient in law to support an irrevocable power. A proxy may be made |
|---|
| 2229 | | - | irrevocable regardless of whether the interest with which it is coupled is |
|---|
| 2230 | | - | an interest in the stock itself or an interest in the corporation generally. |
|---|
| 2231 | | - | Sec. 22. K.S.A. 2022 Supp. 17-6503 is hereby amended to read as |
|---|
| 2232 | | - | follows: 17-6503. (a) In order that the corporation may determine the |
|---|
| 2233 | | - | stockholders entitled to notice of any meeting of stockholders or any |
|---|
| 2234 | | - | adjournment thereof, the board of directors may fix a record date, |
|---|
| 2235 | | - | which record date that shall not precede the date upon which when the |
|---|
| 2236 | | - | resolution fixing the record date is adopted by the board of directors, |
|---|
| 2237 | | - | and which record date shall not be more than 60 nor less than 10 days |
|---|
| 2238 | | - | before the date of such meeting. If the board of directors so fixes a date, |
|---|
| 2239 | | - | such date shall also be the record date for determining the stockholders |
|---|
| 2240 | | - | entitled to vote at such meeting unless the board of directors |
|---|
| 2241 | | - | determines, at the time it fixes such record date, that a later date on or |
|---|
| 2242 | | - | before the date of the meeting shall be the date for making such |
|---|
| 2243 | | - | determination. If no record date is fixed by the board of directors, the |
|---|
| 2244 | | - | record date for determining stockholders entitled to notice of and to |
|---|
| 2245 | | - | vote at a meeting of stockholders shall be at the close of business on the |
|---|
| 2246 | | - | day next preceding the day on which when notice is given, or, if notice |
|---|
| 2247 | | - | is waived, at the close of business on the day next preceding the day on |
|---|
| 2248 | | - | which when the meeting is held. A determination of stockholders of |
|---|
| 2249 | | - | record entitled to notice of or to vote at a meeting of stockholders shall |
|---|
| 2250 | | - | apply to any adjournment of the meeting except that the board of |
|---|
| 2251 | | - | directors may fix a new record date for determination of stockholders |
|---|
| 2252 | | - | entitled to vote at the adjourned meeting, and in such case shall also fix |
|---|
| 2253 | | - | as the record date for stockholders entitled to notice of such adjourned |
|---|
| 2254 | | - | meeting the same or an earlier date as that fixed for determination of |
|---|
| 2255 | | - | stockholders entitled to vote in accordance with the foregoing |
|---|
| 2256 | | - | provisions of this subsection at the adjourned meeting. |
|---|
| 2257 | | - | (b) In order that the corporation may determine the stockholders |
|---|
| 2258 | | - | entitled to consent to corporate action in writing without a meeting in |
|---|
| 2259 | | - | accordance with K.S.A. 17-6518, and amendments thereto, the board of |
|---|
| 2260 | | - | directors may fix a record date which record date that shall not precede H Sub for SENATE BILL No. 244—page 39 |
|---|
| 2261 | | - | the date upon which when the resolution fixing the record date is |
|---|
| 2262 | | - | adopted by the board of directors, and which date shall not be more |
|---|
| 2263 | | - | than 10 days after the date upon which when the resolution fixing the |
|---|
| 2264 | | - | record date is adopted by the board of directors. If no record date has |
|---|
| 2265 | | - | been fixed by the board of directors, the record date for determining |
|---|
| 2266 | | - | stockholders entitled to consent to corporate action in writing without a |
|---|
| 2267 | | - | meeting, when no prior action by the board of directors is required by |
|---|
| 2268 | | - | this code, shall be the first date on which when a signed written consent |
|---|
| 2269 | | - | setting forth the action taken or proposed to be taken is delivered to the |
|---|
| 2270 | | - | corporation by delivery to its registered office in this state, its principal |
|---|
| 2271 | | - | place of business, or an officer or agent of the corporation having |
|---|
| 2272 | | - | custody of the book in which proceedings of meetings of stockholders |
|---|
| 2273 | | - | are recorded. Delivery made to a corporation's registered office shall be |
|---|
| 2274 | | - | by hand or by certified or registered mail, return receipt requested in |
|---|
| 2275 | | - | accordance with K.S.A. 17-6518(d), and amendments thereto. If no |
|---|
| 2276 | | - | record date has been fixed by the board of directors and prior action by |
|---|
| 2277 | | - | the board of directors is required by this code, the record date for |
|---|
| 2278 | | - | determining stockholders entitled to consent to corporate action in |
|---|
| 2279 | | - | writing without a meeting shall be at the close of business on the day |
|---|
| 2280 | | - | on which when the board of directors adopts the resolution taking such |
|---|
| 2281 | | - | prior action. |
|---|
| 2282 | | - | (c) In order that the corporation may determine the stockholders |
|---|
| 2283 | | - | entitled to receive payment of any dividend or other distribution or |
|---|
| 2284 | | - | allotment of any rights or the stockholders entitled to exercise any |
|---|
| 2285 | | - | rights in respect of any change, conversion or exchange of stock, or for |
|---|
| 2286 | | - | the purpose of any other lawful action, the board of directors may fix a |
|---|
| 2287 | | - | record date, which record date that shall not precede the date upon |
|---|
| 2288 | | - | which when the resolution fixing the record date is adopted, and which |
|---|
| 2289 | | - | record date shall be not more than 60 days prior to such action. If no |
|---|
| 2290 | | - | record date is fixed, the record date for determining stockholders for |
|---|
| 2291 | | - | any such purpose shall be at the close of business on the day on which |
|---|
| 2292 | | - | when the board of directors adopts the resolution relating thereto. |
|---|
| 2293 | | - | Sec. 23. K.S.A. 2022 Supp. 17-6509 is hereby amended to read as |
|---|
| 2294 | | - | follows: 17-6509. (a) The officer who has charge of the stock ledger of |
|---|
| 2295 | | - | a corporation shall prepare and make, at least 10 days before every |
|---|
| 2296 | | - | meeting of stockholders, a complete list of the stockholders entitled to |
|---|
| 2297 | | - | vote at the meeting, except that if the record date for determining the |
|---|
| 2298 | | - | stockholders entitled to vote is less than 10 days before the meeting |
|---|
| 2299 | | - | date, the list shall reflect the stockholders entitled to vote as of the 10 |
|---|
| 2300 | | - | th |
|---|
| 2301 | | - | day before the meeting date, arranged in alphabetical order, and |
|---|
| 2302 | | - | showing the postal address of each stockholder and the number of |
|---|
| 2303 | | - | shares registered in the name of each stockholder. Nothing contained in |
|---|
| 2304 | | - | this section shall require the corporation to include electronic mail |
|---|
| 2305 | | - | addresses or other electronic contact information on such list. Such list |
|---|
| 2306 | | - | shall be open to the examination of any stockholder, for any purpose |
|---|
| 2307 | | - | germane to the meeting for a period of at least 10 days prior to the |
|---|
| 2308 | | - | meeting: (1) On a reasonably accessible electronic network, provided if |
|---|
| 2309 | | - | that the information required to gain access to such list is provided with |
|---|
| 2310 | | - | the notice of the meeting; or (2) during ordinary business hours, at the |
|---|
| 2311 | | - | principal place of business of the corporation. In the event that If the |
|---|
| 2312 | | - | corporation determines to make the list available on an electronic |
|---|
| 2313 | | - | network, the corporation may take reasonable steps to ensure that such |
|---|
| 2314 | | - | information is available only to stockholders of the corporation. If the |
|---|
| 2315 | | - | meeting is to be held at a place, then the list shall be produced and kept |
|---|
| 2316 | | - | at the time and place of the meeting during the whole time thereof, and |
|---|
| 2317 | | - | may be inspected by any stockholder who is present. If the meeting is |
|---|
| 2318 | | - | to be held solely by means of remote communication, then the list shall |
|---|
| 2319 | | - | also be open to the examination of any stockholder during the whole |
|---|
| 2320 | | - | time of the meeting on a reasonably accessible electronic network, and H Sub for SENATE BILL No. 244—page 40 |
|---|
| 2321 | | - | the information required to access such list shall be provided with the |
|---|
| 2322 | | - | notice of the meeting. |
|---|
| 2323 | | - | (b) If the corporation, or an officer or agent thereof, refuses to |
|---|
| 2324 | | - | permit examination of the list by a stockholder, such stockholder may |
|---|
| 2325 | | - | apply to the district court for an order to compel the corporation to |
|---|
| 2326 | | - | permit such examination. The burden of proof shall be on the |
|---|
| 2327 | | - | corporation to establish that the examination such stockholder seeks is |
|---|
| 2328 | | - | for a purpose not germane to the meeting. The court may summarily |
|---|
| 2329 | | - | order the corporation to permit examination of the list upon such |
|---|
| 2330 | | - | conditions as the court may deem appropriate, and may make such |
|---|
| 2331 | | - | additional orders as may be appropriate, including, without limitation, |
|---|
| 2332 | | - | postponing the meeting or voiding the results of the meeting. |
|---|
| 2333 | | - | (c) For purposes of this code, "stock ledger" means one or more |
|---|
| 2334 | | - | records administered by or on behalf of the corporation in which the |
|---|
| 2335 | | - | names of all of the corporation's stockholders of record, the address |
|---|
| 2336 | | - | and number of shares registered in the name of each such stockholder |
|---|
| 2337 | | - | and all issuances and transfers of stock of the corporation are recorded |
|---|
| 2338 | | - | in accordance with K.S.A. 17-6514, and amendments thereto. The stock |
|---|
| 2339 | | - | ledger shall be the only evidence as to who are the stockholders entitled |
|---|
| 2340 | | - | by this section to examine the list required by this section or to vote in |
|---|
| 2341 | | - | person or by proxy at any meeting of stockholders. |
|---|
| 2342 | | - | Sec. 24. K.S.A. 2022 Supp. 17-6512 is hereby amended to read as |
|---|
| 2343 | | - | follows: 17-6512. (a) Whenever stockholders are required or permitted |
|---|
| 2344 | | - | to take any action at a meeting, a written notice of the meeting shall be |
|---|
| 2345 | | - | given which that shall state the place, if any, date and hour of the |
|---|
| 2346 | | - | meeting, the means of remote communication, if any, by which |
|---|
| 2347 | | - | stockholders and proxy holders may be deemed to be present in person |
|---|
| 2348 | | - | and vote at such meeting, the record date for determining the |
|---|
| 2349 | | - | stockholders entitled to vote at the meeting, if such date is different |
|---|
| 2350 | | - | from the record date for determining stockholders entitled to notice of |
|---|
| 2351 | | - | the meeting, and, in the case of a special meeting, the purpose or |
|---|
| 2352 | | - | purposes for which the meeting is called. |
|---|
| 2353 | | - | (b) Unless otherwise provided in this code, the written notice of |
|---|
| 2354 | | - | any meeting shall be given not less than 10 nor more than 60 days |
|---|
| 2355 | | - | before the date of the meeting to each stockholder entitled to vote at |
|---|
| 2356 | | - | such meeting as of the record date for determining the stockholders |
|---|
| 2357 | | - | entitled to notice of the meeting. If mailed, notice is given when |
|---|
| 2358 | | - | deposited in the United States mail, postage prepaid, directed to the |
|---|
| 2359 | | - | stockholder at such stockholder's address as it appears on the records of |
|---|
| 2360 | | - | the corporation. An affidavit of the secretary or an assistant secretary or |
|---|
| 2361 | | - | of the transfer agent or other agent of the corporation that the notice has |
|---|
| 2362 | | - | been given shall be prima facie evidence of the facts stated therein in |
|---|
| 2363 | | - | the absence of fraud. |
|---|
| 2364 | | - | (c) When a meeting is adjourned to another time or place, unless |
|---|
| 2365 | | - | the bylaws otherwise require, notice need not be given of the adjourned |
|---|
| 2366 | | - | meeting if the time, place, if any, thereof, and the means of remote |
|---|
| 2367 | | - | communication, if any, by which stockholders and proxy holders may |
|---|
| 2368 | | - | be deemed to be present in person and vote at such adjourned meeting |
|---|
| 2369 | | - | are announced at the meeting at which the adjournment is taken. At the |
|---|
| 2370 | | - | adjourned meeting the corporation may transact any business which |
|---|
| 2371 | | - | that might have been transacted at the original meeting. If the |
|---|
| 2372 | | - | adjournment is for more than 30 days, a notice of the adjourned |
|---|
| 2373 | | - | meeting shall be given to each stockholder of record entitled to vote at |
|---|
| 2374 | | - | the meeting. If, after the adjournment, a new record date for |
|---|
| 2375 | | - | stockholders entitled to vote is fixed for the adjourned meeting, the |
|---|
| 2376 | | - | board of directors shall fix a new record date for notice of such |
|---|
| 2377 | | - | adjourned meeting in accordance with K.S.A. 17-6503(a), and |
|---|
| 2378 | | - | amendments thereto, and shall give notice of the adjourned meeting to |
|---|
| 2379 | | - | each stockholder of record entitled to vote at such adjourned meeting as H Sub for SENATE BILL No. 244—page 41 |
|---|
| 2380 | | - | of the record date fixed for notice of such adjourned meeting. |
|---|
| 2381 | | - | Sec. 25. K.S.A. 2022 Supp. 17-6514 is hereby amended to read as |
|---|
| 2382 | | - | follows: 17-6514. Any records maintained administered by a or on |
|---|
| 2383 | | - | behalf of the corporation in the regular course of its business, including |
|---|
| 2384 | | - | its stock ledger, books of account and minute books, may be kept on, or |
|---|
| 2385 | | - | by means of, or be in the form of any information storage device or, |
|---|
| 2386 | | - | method provided that, or one or more electronic networks or |
|---|
| 2387 | | - | databases, including one or more distributed electronic networks or |
|---|
| 2388 | | - | databases, if the records so kept can be converted into clearly legible |
|---|
| 2389 | | - | paper form within a reasonable time and, with respect to the stock |
|---|
| 2390 | | - | ledger: (a) Can be used to prepare the list of stockholders specified in |
|---|
| 2391 | | - | K.S.A. 17-6509 and 17-6510, and amendments thereto; (b) contain the |
|---|
| 2392 | | - | information specified in K.S.A. 17-6406, 17-6409, 17-6507(a) and 17- |
|---|
| 2393 | | - | 6508, and amendments thereto; and (c) include transfers of stock as |
|---|
| 2394 | | - | governed by article 8 of chapter 84 of the Kansas Statutes Annotated, |
|---|
| 2395 | | - | and amendments thereto. Any corporation shall so convert any records |
|---|
| 2396 | | - | so kept into clearly legible paper form upon the request of any person |
|---|
| 2397 | | - | entitled to inspect such records pursuant to any provision of this code. |
|---|
| 2398 | | - | When records are kept in such manner, a clearly legible paper form |
|---|
| 2399 | | - | produced prepared from or by the means of the information storage |
|---|
| 2400 | | - | device or, method, or one or more electronic networks or databases, |
|---|
| 2401 | | - | including one or more distributed electronic networks or databases, |
|---|
| 2402 | | - | shall be valid and admissible in evidence and shall be accepted for all |
|---|
| 2403 | | - | other purposes, to the same extent as an original paper record of the |
|---|
| 2404 | | - | same information would have been, provided if the paper form |
|---|
| 2405 | | - | accurately portrays the record. |
|---|
| 2406 | | - | Sec. 26. K.S.A. 2022 Supp. 17-6518 is hereby amended to read as |
|---|
| 2407 | | - | follows: 17-6518. (a) Unless otherwise provided in the articles of |
|---|
| 2408 | | - | incorporation, any action required by this code to be taken at any |
|---|
| 2409 | | - | annual or special meeting of stockholders of a corporation, or any |
|---|
| 2410 | | - | action which that may be taken at any annual or special meeting of |
|---|
| 2411 | | - | such stockholders, may be taken without a meeting, without prior |
|---|
| 2412 | | - | notice and without a vote, if a consent or consents in writing, setting |
|---|
| 2413 | | - | forth the action so taken, are signed by the holders of outstanding stock |
|---|
| 2414 | | - | having not less than the minimum number of votes that would be |
|---|
| 2415 | | - | necessary to authorize or take such action at a meeting at which all |
|---|
| 2416 | | - | shares entitled to vote thereon were present and voted and shall be |
|---|
| 2417 | | - | delivered to the corporation by delivery to its registered office in this |
|---|
| 2418 | | - | state, its principal place of business or an officer or agent of the |
|---|
| 2419 | | - | corporation having custody of the book in which proceedings of |
|---|
| 2420 | | - | meetings of stockholders are recorded. Delivery made to a corporation's |
|---|
| 2421 | | - | registered office shall be by hand or by certified or registered mail, |
|---|
| 2422 | | - | return receipt requested in the manner required by this section. |
|---|
| 2423 | | - | (b) Unless otherwise provided in the articles of incorporation, any |
|---|
| 2424 | | - | action required by this code to be taken at a meeting of the members of |
|---|
| 2425 | | - | a nonstock corporation, or any action which that may be taken at any |
|---|
| 2426 | | - | meeting of the members of a nonstock corporation, may be taken |
|---|
| 2427 | | - | without a meeting, without prior notice and without a vote, if a consent |
|---|
| 2428 | | - | or consents in writing, setting forth the action so taken, are signed by |
|---|
| 2429 | | - | members having not less than the minimum number of votes that would |
|---|
| 2430 | | - | be necessary to authorize or take such action at a meeting at which all |
|---|
| 2431 | | - | members having a right to vote thereon were present and voted and |
|---|
| 2432 | | - | shall be delivered to the corporation by delivery to its registered office |
|---|
| 2433 | | - | in this state, its principal place of business or an officer or agent of the |
|---|
| 2434 | | - | corporation having custody of the book in which proceedings of |
|---|
| 2435 | | - | meetings of members are recorded. Delivery made to a corporation's |
|---|
| 2436 | | - | registered office shall be by hand or by certified or registered mail, |
|---|
| 2437 | | - | return receipt requested in the manner required by this section. |
|---|
| 2438 | | - | (c) Every written consent shall bear the date of signature of each H Sub for SENATE BILL No. 244—page 42 |
|---|
| 2439 | | - | stockholder or member who signs the consent, andA consent must be |
|---|
| 2440 | | - | set forth in writing or in an electronic transmission. No written consent |
|---|
| 2441 | | - | shall be effective to take the corporate action referred to therein in such |
|---|
| 2442 | | - | consent unless, within 60 days of the earliest dated consent delivered in |
|---|
| 2443 | | - | the manner required by this section to the corporation, written consents |
|---|
| 2444 | | - | signed by a sufficient number of holders or members to take action are |
|---|
| 2445 | | - | delivered to the corporation by delivery to its registered office in this |
|---|
| 2446 | | - | state, its principal place of business or an officer or agent of the |
|---|
| 2447 | | - | corporation having custody of the book in which proceedings of |
|---|
| 2448 | | - | meetings of stockholders or members are recorded. Delivery made to a |
|---|
| 2449 | | - | corporation's registered office shall be by hand or by certified or |
|---|
| 2450 | | - | registered mail, return receipt requested in the manner required by this |
|---|
| 2451 | | - | section within 60 days of the first date when a consent is so delivered to |
|---|
| 2452 | | - | the corporation. Any person executing a consent may provide, whether |
|---|
| 2453 | | - | through instruction to an agent or otherwise, that such a consent will be |
|---|
| 2454 | | - | effective at a future time, including a time determined upon the |
|---|
| 2455 | | - | happening of an event, no later than 60 days after such instruction is |
|---|
| 2456 | | - | given or such provision is made, and, for the purposes of this section, if |
|---|
| 2457 | | - | evidence of such instruction or provision is provided to the corporation, |
|---|
| 2458 | | - | such later effective time shall serve as the date of signature. Unless |
|---|
| 2459 | | - | otherwise provided, any such consent shall be revocable prior to its |
|---|
| 2460 | | - | becoming effective. All references to a "consent" in this section mean a |
|---|
| 2461 | | - | consent permitted by this section. |
|---|
| 2462 | | - | (d) (1) Any electronic transmission consenting to an action to be |
|---|
| 2463 | | - | taken and transmitted by a stockholder, member or proxyholder, or by a |
|---|
| 2464 | | - | person or persons authorized to act for a stockholder, member or |
|---|
| 2465 | | - | proxyholder, shall be deemed to be written, signed and dated for the |
|---|
| 2466 | | - | purposes of this section, provided that any such electronic transmission |
|---|
| 2467 | | - | sets forth or is delivered with information from which the corporation |
|---|
| 2468 | | - | can determine: (A) That the electronic transmission was transmitted by |
|---|
| 2469 | | - | the stockholder, member or proxyholder or by a person or persons |
|---|
| 2470 | | - | authorized to act for the stockholder, member or proxyholder; and (B) |
|---|
| 2471 | | - | the date on which such stockholder, member or proxyholder or |
|---|
| 2472 | | - | authorized person or persons transmitted such electronic transmission. |
|---|
| 2473 | | - | The date on which such electronic transmission is transmitted shall be |
|---|
| 2474 | | - | deemed to be the date on which such consent was signed. No consent |
|---|
| 2475 | | - | given by electronic transmission shall be deemed to have been |
|---|
| 2476 | | - | delivered until such consent is reproduced in paper form and until such |
|---|
| 2477 | | - | paper form shall be delivered to the corporation by delivery to its |
|---|
| 2478 | | - | registered office in this state, its principal place of business or an |
|---|
| 2479 | | - | officer or agent of the corporation having custody of the book in which |
|---|
| 2480 | | - | proceedings of meetings of stockholders or members are recorded. |
|---|
| 2481 | | - | Delivery made to a corporation's registered office shall be by hand or |
|---|
| 2482 | | - | by certified or registered mail, return receipt requested. |
|---|
| 2483 | | - | Notwithstanding the foregoing limitations on delivery, any consent or |
|---|
| 2484 | | - | consents given by electronic transmission, may be otherwise delivered |
|---|
| 2485 | | - | to the principal place of business of the corporation or to an officer or |
|---|
| 2486 | | - | agent of the corporation having custody of the book in which |
|---|
| 2487 | | - | proceedings of meetings of stockholders or members are recorded if, to |
|---|
| 2488 | | - | the extent and in the manner provided by resolution of the board of |
|---|
| 2489 | | - | directors or governing body of the corporationA consent permitted by |
|---|
| 2490 | | - | this section shall be delivered: (A) To the principal place of business of |
|---|
| 2491 | | - | the corporation; (B) to an officer or agent of the corporation having |
|---|
| 2492 | | - | custody of the book in which proceedings of meetings of stockholders |
|---|
| 2493 | | - | or members are recorded; (C) to the registered office of the |
|---|
| 2494 | | - | corporation in this state by hand or by certified or registered mail, |
|---|
| 2495 | | - | return receipt requested; or (D) subject to paragraph (2), in |
|---|
| 2496 | | - | accordance with section 1, and amendments thereto, to an information |
|---|
| 2497 | | - | processing system, if any, designated by the corporation for receiving H Sub for SENATE BILL No. 244—page 43 |
|---|
| 2498 | | - | such consents. |
|---|
| 2499 | | - | (2) In the case of delivery pursuant to subsection (d)(1)(D), such |
|---|
| 2500 | | - | consent must set forth or be delivered with information that enables the |
|---|
| 2501 | | - | corporation to determine the date of delivery of such consent and the |
|---|
| 2502 | | - | identity of the person giving such consent, and, if such consent is given |
|---|
| 2503 | | - | by a person authorized to act for a stockholder or member as proxy, |
|---|
| 2504 | | - | such consent must comply with the applicable provisions of K.S.A. 17- |
|---|
| 2505 | | - | 6502(c)(2) and (c)(3), and amendments thereto. |
|---|
| 2506 | | - | (3) Any copy, facsimile or other reliable reproduction of a consent |
|---|
| 2507 | | - | in writing may be substituted or used in lieu of the original writing for |
|---|
| 2508 | | - | any and all purposes for which the original writing could be used, |
|---|
| 2509 | | - | provided that. Such copy, facsimile or other reproduction shall be a |
|---|
| 2510 | | - | complete reproduction of the entire original writing. A consent may be |
|---|
| 2511 | | - | documented and signed in accordance with section 1, and amendments |
|---|
| 2512 | | - | thereto, and when so documented or signed shall be deemed to be in |
|---|
| 2513 | | - | writing for purposes of this code. If such consent is delivered pursuant |
|---|
| 2514 | | - | to subsection (d)(1)(A), (B) or (C), such consent must be reproduced |
|---|
| 2515 | | - | and delivered in paper form. |
|---|
| 2516 | | - | (e) Prompt notice of the taking of any corporate action without a |
|---|
| 2517 | | - | meeting by less than unanimous written consent shall be given to those |
|---|
| 2518 | | - | stockholders or members who have not consented in writing and who, |
|---|
| 2519 | | - | if the action had been taken at a meeting, would have been entitled to |
|---|
| 2520 | | - | notice of the meeting if the record date for notice of such meeting had |
|---|
| 2521 | | - | been the date that a written consent or consents signed by a sufficient |
|---|
| 2522 | | - | number of stockholders or members to take the action were delivered to |
|---|
| 2523 | | - | the corporation as provided in subsection (c) this section. In the event |
|---|
| 2524 | | - | that the action which that is consented to is such as would have |
|---|
| 2525 | | - | required the filing of a certificate under any other section of this code, |
|---|
| 2526 | | - | if such action had been voted on by stockholders or members at a |
|---|
| 2527 | | - | meeting thereof, the certificate filed under such other section shall |
|---|
| 2528 | | - | state, in lieu of any statement required by such section concerning any |
|---|
| 2529 | | - | vote of stockholders or members, that written consent has been given in |
|---|
| 2530 | | - | accordance with the provisions of this section. |
|---|
| 2531 | | - | Sec. 27. K.S.A. 17-6520 is hereby amended to read as follows: 17- |
|---|
| 2532 | | - | 6520. (a) Whenever notice is required to be given, under any provision |
|---|
| 2533 | | - | of this act or of the articles of incorporation or bylaws of any |
|---|
| 2534 | | - | corporation, to any person with whom communication is unlawful, the |
|---|
| 2535 | | - | giving of such notice to such person shall not be required and there |
|---|
| 2536 | | - | shall be no duty to apply to any governmental authority or agency for a |
|---|
| 2537 | | - | license or permit to give such notice to such person. Any action or |
|---|
| 2538 | | - | meeting which shall be that is taken or held without notice to any such |
|---|
| 2539 | | - | person with whom communication is unlawful shall have the same |
|---|
| 2540 | | - | force and effect as if such notice had been duly given. In the event that |
|---|
| 2541 | | - | the action taken by the corporation is such as to require the filing of a |
|---|
| 2542 | | - | certificate under any of the other sections of this act, the certificate |
|---|
| 2543 | | - | shall state, if such is the fact and if notice is required, that notice was |
|---|
| 2544 | | - | given to all persons entitled to receive notice except such persons with |
|---|
| 2545 | | - | whom communication is unlawful. |
|---|
| 2546 | | - | (b) Whenever notice is required to be given, under any provision |
|---|
| 2547 | | - | of this act or the articles of incorporation or bylaws of any corporation, |
|---|
| 2548 | | - | to any stockholder or, if the corporation is a nonstock corporation, to |
|---|
| 2549 | | - | any member, to whom (1) notice of two consecutive annual meetings, |
|---|
| 2550 | | - | and all notices of meetings or of the taking of action by written consent |
|---|
| 2551 | | - | without a meeting to such person during the period between such two |
|---|
| 2552 | | - | consecutive annual meetings, or (2) all, and at least two payments, if |
|---|
| 2553 | | - | sent by first class mail, of dividends or interest on securities during a |
|---|
| 2554 | | - | 12-month period, have been mailed addressed to such person at such |
|---|
| 2555 | | - | person's postal address as shown on the records of the corporation and |
|---|
| 2556 | | - | have been returned undeliverable, the giving of such notice to such H Sub for SENATE BILL No. 244—page 44 |
|---|
| 2557 | | - | person shall not be required. Any action or meeting which shall be that |
|---|
| 2558 | | - | is taken or held without notice to such person shall have the same force |
|---|
| 2559 | | - | and effect as if such notice had been duly given. If any such person |
|---|
| 2560 | | - | shall deliver to the corporation a written notice setting forth such |
|---|
| 2561 | | - | person's then current postal address, the requirement that notice be |
|---|
| 2562 | | - | given to such person shall be reinstated. In the event that the action |
|---|
| 2563 | | - | taken by the corporation is such as to require the filing of a certificate |
|---|
| 2564 | | - | under any of the other sections of this chapter, the certificate need not |
|---|
| 2565 | | - | state that notice was not given to persons to whom notice was not |
|---|
| 2566 | | - | required to be given pursuant to this subsection. |
|---|
| 2567 | | - | (c) The exception in subsection (b)(1) to the requirement that |
|---|
| 2568 | | - | notice be given shall not be applicable to: |
|---|
| 2569 | | - | (1) Any notice returned as undeliverable if the notice was given by |
|---|
| 2570 | | - | electronic transmission; or |
|---|
| 2571 | | - | (2) any stockholder or member whose electronic mail address |
|---|
| 2572 | | - | appears on the records of the corporation and to whom notice by |
|---|
| 2573 | | - | electronic transmission is not prohibited by K.S.A. 17-6522, and |
|---|
| 2574 | | - | amendments thereto. |
|---|
| 2575 | | - | Sec. 28. K.S.A. 2022 Supp. 17-6522 is hereby amended to read as |
|---|
| 2576 | | - | follows: 17-6522. (a) Without limiting the manner by which notice |
|---|
| 2577 | | - | otherwise may be given effectively to stockholders, any notice to |
|---|
| 2578 | | - | stockholders given by the corporation under any provision of this code |
|---|
| 2579 | | - | or the articles of incorporation or bylaws may be given in writing |
|---|
| 2580 | | - | directed to the stockholder's postal address, or by electronic |
|---|
| 2581 | | - | transmission directed to the stockholder's electronic mail address, as |
|---|
| 2582 | | - | applicable, as it appears on the records of the corporation and shall be |
|---|
| 2583 | | - | given: (1) If mailed, when the notice is deposited in the U.S. mail, |
|---|
| 2584 | | - | postage prepaid; (2) if delivered by courier service, the earlier of when |
|---|
| 2585 | | - | the notice is received or left at such stockholder's address; or (3) if |
|---|
| 2586 | | - | given by electronic mail, when directed to such stockholder's electronic |
|---|
| 2587 | | - | mail address unless the stockholder has notified the corporation in |
|---|
| 2588 | | - | writing or by electronic transmission of an objection to receiving notice |
|---|
| 2589 | | - | by electronic mail or such notice is prohibited by subsection (e). A |
|---|
| 2590 | | - | notice by electronic mail must include a prominent legend that the |
|---|
| 2591 | | - | communication is an important notice regarding the corporation. |
|---|
| 2592 | | - | (b) Without limiting the manner by which notice otherwise may be |
|---|
| 2593 | | - | given effectively to stockholders, but subject to subsection (e), any |
|---|
| 2594 | | - | notice to stockholders given by the corporation under any provision of |
|---|
| 2595 | | - | this code, or the articles of incorporation, or the bylaws shall be |
|---|
| 2596 | | - | effective if given by a form of electronic transmission consented to by |
|---|
| 2597 | | - | the stockholder to whom the notice is given. Any such consent shall be |
|---|
| 2598 | | - | revocable by the stockholder by written notice or electronic |
|---|
| 2599 | | - | transmission to the corporation. Any such consent shall be deemed |
|---|
| 2600 | | - | revoked if: (1) The corporation is unable to deliver by electronic |
|---|
| 2601 | | - | transmission two consecutive notices given by the corporation in |
|---|
| 2602 | | - | accordance with such consent; and (2) such inability becomes known to |
|---|
| 2603 | | - | the secretary or an assistant secretary of the corporation or to the |
|---|
| 2604 | | - | transfer agent, or other person responsible for the giving of notice. The |
|---|
| 2605 | | - | inadvertent failure to treat such inability as a revocation shall not |
|---|
| 2606 | | - | invalidate any meeting or other action A corporation may give a notice |
|---|
| 2607 | | - | by electronic mail in accordance with subsection (a) without obtaining |
|---|
| 2608 | | - | the consent required by this subsection. |
|---|
| 2609 | | - | (b)(c) Notice given pursuant to subsection (a) (b) shall be deemed |
|---|
| 2610 | | - | given: |
|---|
| 2611 | | - | (1) If by facsimile telecommunication, when directed to a number |
|---|
| 2612 | | - | at which the stockholder has consented to receive notice; |
|---|
| 2613 | | - | (2) if by electronic mail, when directed to an electronic mail address |
|---|
| 2614 | | - | at which the stockholder has consented to receive notice; (3) if by a |
|---|
| 2615 | | - | posting on an electronic network together with separate notice to the H Sub for SENATE BILL No. 244—page 45 |
|---|
| 2616 | | - | stockholder of such specific posting, upon the later of: |
|---|
| 2617 | | - | (A) Such posting; and |
|---|
| 2618 | | - | (B) the giving of such separate notice; and |
|---|
| 2619 | | - | (4)(3) if by any other form of electronic transmission, when |
|---|
| 2620 | | - | directed to the stockholder. An affidavit of the secretary or an assistant |
|---|
| 2621 | | - | secretary or of the transfer agent or other agent of the corporation that |
|---|
| 2622 | | - | the notice has been given by a form of electronic transmission, in the |
|---|
| 2623 | | - | absence of fraud, shall be prima facie evidence of the facts stated |
|---|
| 2624 | | - | therein. |
|---|
| 2625 | | - | (c)(d) For purposes of this code,: |
|---|
| 2626 | | - | (1) "Electronic transmission" means any form of communication, |
|---|
| 2627 | | - | not directly involving the physical transmission of paper, including the |
|---|
| 2628 | | - | use of, or participation in, one or more electronic networks or |
|---|
| 2629 | | - | databases or one or more distributed electronic networks or databases, |
|---|
| 2630 | | - | that creates a record that may be retained, retrieved and reviewed by a |
|---|
| 2631 | | - | recipient thereof, and that may be directly reproduced in paper form by |
|---|
| 2632 | | - | such a recipient through an automated process; |
|---|
| 2633 | | - | (2) "electronic mail" means an electronic transmission directed to |
|---|
| 2634 | | - | a unique electronic mail address, including any files attached thereto |
|---|
| 2635 | | - | and any information hyperlinked to a website if such electronic mail |
|---|
| 2636 | | - | includes the contact information of an officer or agent of the |
|---|
| 2637 | | - | corporation who is available to assist with accessing such files and |
|---|
| 2638 | | - | information; and |
|---|
| 2639 | | - | (3) "electronic mail address" means a destination, commonly |
|---|
| 2640 | | - | expressed as a string of characters, consisting of a unique username or |
|---|
| 2641 | | - | mailbox, commonly referred to as the "local part" of the address, and a |
|---|
| 2642 | | - | reference to an internet domain, commonly referred to as the "domain |
|---|
| 2643 | | - | part" of the address, whether or not displayed, to which electronic mail |
|---|
| 2644 | | - | can be sent or delivered. |
|---|
| 2645 | | - | (e) Notwithstanding the provisions of this section, a notice shall |
|---|
| 2646 | | - | not be given by an electronic transmission from and after the time that |
|---|
| 2647 | | - | the corporation is unable to deliver by such electronic transmission |
|---|
| 2648 | | - | two consecutive notices given by the corporation and such inability |
|---|
| 2649 | | - | becomes known to the secretary or an assistant secretary of the |
|---|
| 2650 | | - | corporation or to the transfer agent, or other person responsible for |
|---|
| 2651 | | - | the giving of notice, but the inadvertent failure to discover such |
|---|
| 2652 | | - | inability shall not invalidate any meeting or other action. |
|---|
| 2653 | | - | (f) An affidavit of the secretary or an assistant secretary or of the |
|---|
| 2654 | | - | transfer agent or other agent of the corporation that notice has been |
|---|
| 2655 | | - | given shall, in the absence of fraud, be prima facie evidence of the facts |
|---|
| 2656 | | - | stated in the affidavit. |
|---|
| 2657 | | - | (d)(g) No provision of this section, except for subsections (a)(1), |
|---|
| 2658 | | - | (d)(2) and (d)(3), shall not apply to K.S.A. 17-6414, 17-6906, 17-7001 |
|---|
| 2659 | | - | or 17-7002, and amendments thereto. |
|---|
| 2660 | | - | Sec. 29. K.S.A. 2022 Supp. 17-6701 is hereby amended to read as |
|---|
| 2661 | | - | follows: 17-6701. (a) Any two or more corporations existing under the |
|---|
| 2662 | | - | laws of this state may merge into a single surviving corporation, which |
|---|
| 2663 | | - | that may be any one of the constituent corporations or may consolidate |
|---|
| 2664 | | - | into a new resulting corporation formed by the consolidation, pursuant |
|---|
| 2665 | | - | to an agreement of merger or consolidation, as the case may be, |
|---|
| 2666 | | - | complying and approved in accordance with this section. |
|---|
| 2667 | | - | (b) The board of directors of each corporation which that desires |
|---|
| 2668 | | - | to merge or consolidate shall adopt a resolution approving an |
|---|
| 2669 | | - | agreement of merger or consolidation and declaring its advisibility |
|---|
| 2670 | | - | advisability. The agreement shall state: (1) The terms and conditions of |
|---|
| 2671 | | - | the merger or consolidation; (2) the mode of carrying the same into |
|---|
| 2672 | | - | effect; (3) in the case of a merger, such amendments or changes in the |
|---|
| 2673 | | - | articles of incorporation of the surviving corporation as are desired to |
|---|
| 2674 | | - | be effected by the merger, which amendments or changes may amend H Sub for SENATE BILL No. 244—page 46 |
|---|
| 2675 | | - | and restate the articles of incorporation of the surviving corporation in |
|---|
| 2676 | | - | their entirety, or, if no such amendments or changes are desired, a |
|---|
| 2677 | | - | statement that the articles of incorporation of the surviving corporation |
|---|
| 2678 | | - | shall be its articles of incorporation; (4) in the case of a consolidation, |
|---|
| 2679 | | - | that the articles of incorporation of the resulting corporation shall be as |
|---|
| 2680 | | - | are set forth in an attachment to the agreement; (5) the manner, if any, |
|---|
| 2681 | | - | of converting the shares of each of the constituent corporations into |
|---|
| 2682 | | - | shares or other securities of the corporation surviving or resulting from |
|---|
| 2683 | | - | the merger or consolidation, or of cancelling some or all of such shares |
|---|
| 2684 | | - | and, if any shares of any of the constituent corporations are not to |
|---|
| 2685 | | - | remain outstanding, to be converted solely into shares or other |
|---|
| 2686 | | - | securities of the surviving or resulting corporation or to be cancelled, |
|---|
| 2687 | | - | the cash, property, rights or securities of any other corporation or entity |
|---|
| 2688 | | - | which that the holders of such shares are to receive in exchange for, or |
|---|
| 2689 | | - | upon conversion of, such shares and the surrender of any certificates |
|---|
| 2690 | | - | evidencing them, which and such cash, property, rights or securities of |
|---|
| 2691 | | - | any other corporation or entity may be in addition to or in lieu of shares |
|---|
| 2692 | | - | or other securities of the surviving or resulting corporation; and (6) |
|---|
| 2693 | | - | such other details or provisions as are deemed desirable, including, |
|---|
| 2694 | | - | without limiting the generality of the foregoing this subsection, a |
|---|
| 2695 | | - | provision for the payment of cash in lieu of the issuance or recognition |
|---|
| 2696 | | - | of fractional shares, interests or rights or other securities of the |
|---|
| 2697 | | - | surviving or resulting corporation or of any other corporation or entity |
|---|
| 2698 | | - | the shares, rights or other securities of which are to be received in the |
|---|
| 2699 | | - | merger or consolidation, or for any other arrangement with respect |
|---|
| 2700 | | - | thereto, consistent with the provisions of K.S.A. 17-6405, and |
|---|
| 2701 | | - | amendments thereto. The agreement so adopted shall be executed by an |
|---|
| 2702 | | - | authorized person, except that if the agreement is filed, it shall be |
|---|
| 2703 | | - | executed in accordance with K.S.A. 2022 Supp. 17-7908, and |
|---|
| 2704 | | - | amendments thereto. Any terms of the agreement of merger or |
|---|
| 2705 | | - | consolidation may be made dependent upon facts ascertainable outside |
|---|
| 2706 | | - | of such agreement, provided that if the manner in which such facts shall |
|---|
| 2707 | | - | operate upon the terms of the agreement is clearly and expressly set |
|---|
| 2708 | | - | forth in the agreement of merger or consolidation. The term "Facts," as |
|---|
| 2709 | | - | used in the preceding sentence, includes, but is not limited to, the |
|---|
| 2710 | | - | occurrence of any event, including a determination or action by any |
|---|
| 2711 | | - | person or body, including the corporation. |
|---|
| 2712 | | - | (c) (1) The agreement required by subsection (b) shall be |
|---|
| 2713 | | - | submitted to the stockholders of each constituent corporation at an |
|---|
| 2714 | | - | annual or special meeting for the purpose of acting on the agreement. |
|---|
| 2715 | | - | (2) Due notice of the time, place and purpose of the meeting shall |
|---|
| 2716 | | - | be mailed given to each holder of stock, whether voting or nonvoting, |
|---|
| 2717 | | - | of the corporation at the stockholder's postal address as it appears on |
|---|
| 2718 | | - | the records of the corporation, at least 20 days prior to the date of the |
|---|
| 2719 | | - | meeting. The notice shall contain a copy of the agreement or a brief |
|---|
| 2720 | | - | summary thereof. |
|---|
| 2721 | | - | (3) At the meeting the agreement shall be considered and a vote |
|---|
| 2722 | | - | taken for its adoption or rejection. If a majority of the outstanding stock |
|---|
| 2723 | | - | of the corporation entitled to vote thereon shall be voted for the |
|---|
| 2724 | | - | adoption of the agreement, that fact shall be certified on the agreement |
|---|
| 2725 | | - | by the secretary or assistant secretary of the corporation, except that |
|---|
| 2726 | | - | such certification on the agreement shall not be required if a certificate |
|---|
| 2727 | | - | of merger or consolidation is filed in lieu of filing the agreement. If the |
|---|
| 2728 | | - | agreement shall be so adopted and certified by each constituent |
|---|
| 2729 | | - | corporation, it shall then be filed, and shall become effective, in |
|---|
| 2730 | | - | accordance with K.S.A. 2022 Supp. 17-7910 and 17-7911, and |
|---|
| 2731 | | - | amendments thereto. |
|---|
| 2732 | | - | (4) In lieu of filing the agreement of merger or consolidation |
|---|
| 2733 | | - | required by this section, the surviving or resulting corporation may file H Sub for SENATE BILL No. 244—page 47 |
|---|
| 2734 | | - | a certificate of merger or consolidation, executed in accordance with |
|---|
| 2735 | | - | K.S.A. 2022 Supp. 17-7908, and amendments thereto, which that |
|---|
| 2736 | | - | states: |
|---|
| 2737 | | - | (A) The name and state of incorporation of each of the constituent |
|---|
| 2738 | | - | corporations; |
|---|
| 2739 | | - | (B) that an agreement of merger or consolidation has been |
|---|
| 2740 | | - | approved, adopted, certified and executed by each of the constituent |
|---|
| 2741 | | - | corporations in accordance with this section; |
|---|
| 2742 | | - | (C) the name of the surviving or resulting corporation; |
|---|
| 2743 | | - | (D) in the case of a merger, such amendments or changes in the |
|---|
| 2744 | | - | articles of incorporation of the surviving corporation as are desired to |
|---|
| 2745 | | - | be effected by the merger, which amendments or changes may amend |
|---|
| 2746 | | - | and restate the articles of incorporation of the surviving corporation in |
|---|
| 2747 | | - | their entirety, or, if no such amendments or changes are desired, a |
|---|
| 2748 | | - | statement that the articles of incorporation shall be the articles of |
|---|
| 2749 | | - | incorporation of the surviving corporation; |
|---|
| 2750 | | - | (E) in the case of a consolidation, that the articles of incorporation |
|---|
| 2751 | | - | of the resulting corporation shall be as are set forth in an attachment to |
|---|
| 2752 | | - | the certificate; |
|---|
| 2753 | | - | (F) that the executed agreement of consolidation or merger is on |
|---|
| 2754 | | - | file at the principal place of business of the surviving or resulting |
|---|
| 2755 | | - | corporation, stating the address thereof; and |
|---|
| 2756 | | - | (G) that a copy of the agreement of consolidation or merger will |
|---|
| 2757 | | - | be furnished by the surviving or resulting corporation, on request and |
|---|
| 2758 | | - | without cost, to any stockholder of any constituent corporation. |
|---|
| 2759 | | - | (d) (1) Any agreement of merger or consolidation may contain a |
|---|
| 2760 | | - | provision that at any time prior to the time that the agreement, or a |
|---|
| 2761 | | - | certificate in lieu thereof, filed with the secretary of state becomes |
|---|
| 2762 | | - | effective in accordance with K.S.A. 2022 Supp. 17-7911, and |
|---|
| 2763 | | - | amendments thereto, the agreement may be terminated by the board of |
|---|
| 2764 | | - | directors of any constituent corporation notwithstanding approval of the |
|---|
| 2765 | | - | agreement by the stockholders of all or any of the constituent |
|---|
| 2766 | | - | corporations; in the event the agreement of merger or consolidation is |
|---|
| 2767 | | - | terminated after the filing of the agreement, or a certificate in lieu |
|---|
| 2768 | | - | thereof, with the secretary of state but before the agreement, or a |
|---|
| 2769 | | - | certificate in lieu thereof, has become effective, a certificate of |
|---|
| 2770 | | - | termination of merger or consolidation shall be filed in accordance with |
|---|
| 2771 | | - | K.S.A. 2022 Supp. 17-7910, and amendments thereto. |
|---|
| 2772 | | - | (2) Any agreement of merger or consolidation may contain a |
|---|
| 2773 | | - | provision that the boards of directors of the constituent corporations |
|---|
| 2774 | | - | may amend the agreement at any time prior to the time that the |
|---|
| 2775 | | - | agreement, or a certificate in lieu thereof, filed with the secretary of |
|---|
| 2776 | | - | state becomes effective in accordance with K.S.A. 2022 Supp. 17-7911, |
|---|
| 2777 | | - | and amendments thereto, except that an amendment made subsequent |
|---|
| 2778 | | - | to the adoption of the agreement by the stockholders of any constituent |
|---|
| 2779 | | - | corporation shall not: |
|---|
| 2780 | | - | (1)(A) Alter or change the amount or kind of shares, securities, |
|---|
| 2781 | | - | cash, property or rights to be received in exchange for or on conversion |
|---|
| 2782 | | - | of all or any of the shares of any class or series thereof of such |
|---|
| 2783 | | - | constituent corporation; |
|---|
| 2784 | | - | (2)(B) alter or change any term of the articles of incorporation of |
|---|
| 2785 | | - | the surviving or resulting corporation to be effected by the merger or |
|---|
| 2786 | | - | consolidation; or |
|---|
| 2787 | | - | (3)(C) alter or change any of the terms and conditions of the |
|---|
| 2788 | | - | agreement if such alteration or change would adversely affect the |
|---|
| 2789 | | - | holders of any class or series thereof of such constituent corporation. In |
|---|
| 2790 | | - | the event the agreement of merger or consolidation is amended after the |
|---|
| 2791 | | - | filing thereof with the secretary of state but before the agreement has |
|---|
| 2792 | | - | become effective, a certificate of amendment of merger or H Sub for SENATE BILL No. 244—page 48 |
|---|
| 2793 | | - | consolidation shall be filed in accordance with K.S.A. 2022 Supp. 17- |
|---|
| 2794 | | - | 7910, and amendments thereto. |
|---|
| 2795 | | - | (e) In the case of a merger, the articles of incorporation of the |
|---|
| 2796 | | - | surviving corporation shall automatically be amended to the extent, if |
|---|
| 2797 | | - | any, that changes in the articles of incorporation are set forth in the |
|---|
| 2798 | | - | agreement of merger. |
|---|
| 2799 | | - | (f) (1) Notwithstanding the requirements of subsection (c), unless |
|---|
| 2800 | | - | required by its articles of incorporation, no vote of stockholders of a |
|---|
| 2801 | | - | constituent corporation surviving a merger shall be necessary to |
|---|
| 2802 | | - | authorize a merger if: |
|---|
| 2803 | | - | (A) The agreement of merger does not amend in any respect the |
|---|
| 2804 | | - | articles of incorporation of such constituent corporation; |
|---|
| 2805 | | - | (B) each share of stock of such constituent corporation |
|---|
| 2806 | | - | outstanding immediately prior to the effective date of the merger is to |
|---|
| 2807 | | - | be an identical outstanding or treasury share of the surviving |
|---|
| 2808 | | - | corporation after the effective date of the merger; and |
|---|
| 2809 | | - | (C) either no shares of common stock of the surviving corporation |
|---|
| 2810 | | - | and no shares, securities or obligations convertible into such stock are |
|---|
| 2811 | | - | to be issued or delivered under the plan of merger, or the authorized |
|---|
| 2812 | | - | unissued shares or the treasury shares of common stock of the |
|---|
| 2813 | | - | surviving corporation to be issued or delivered under the plan of merger |
|---|
| 2814 | | - | plus those initially issuable upon conversion of any other shares, |
|---|
| 2815 | | - | securities or obligations to be issued or delivered under such plan do |
|---|
| 2816 | | - | not exceed 20% of the shares of common stock of such constituent |
|---|
| 2817 | | - | corporation outstanding immediately prior to the effective date of the |
|---|
| 2818 | | - | merger. |
|---|
| 2819 | | - | (2) No vote of stockholders of a constituent corporation shall be |
|---|
| 2820 | | - | necessary to authorize a merger or consolidation if no shares of the |
|---|
| 2821 | | - | stock of such corporation shall have been issued prior to the adoption |
|---|
| 2822 | | - | by the board of directors of the resolution approving the agreement of |
|---|
| 2823 | | - | merger or consolidation. |
|---|
| 2824 | | - | (3) If an agreement of merger is adopted by the constituent |
|---|
| 2825 | | - | corporation surviving the merger, by action of its board of directors and |
|---|
| 2826 | | - | without any vote of its stockholders pursuant to this subsection, the |
|---|
| 2827 | | - | secretary or assistant secretary of that corporation shall certify on the |
|---|
| 2828 | | - | agreement that the agreement has been adopted pursuant to this |
|---|
| 2829 | | - | subsection and: |
|---|
| 2830 | | - | (A) If it has been adopted pursuant to subsection (f)(1), that the |
|---|
| 2831 | | - | conditions specified in that subsection have been satisfied; or |
|---|
| 2832 | | - | (B) if it has been adopted pursuant to subsection (f)(2), that no |
|---|
| 2833 | | - | shares of stock of such corporation were issued prior to the adoption by |
|---|
| 2834 | | - | the board of directors of the resolution approving the agreement of |
|---|
| 2835 | | - | merger or consolidation. |
|---|
| 2836 | | - | (4) The agreement so adopted and certified shall then be executed |
|---|
| 2837 | | - | and filed, and shall become effective, in accordance with K.S.A. 2022 |
|---|
| 2838 | | - | Supp. 17-7908 through 17-7911, and amendments thereto. Such filing |
|---|
| 2839 | | - | shall constitute a representation by the person who executes the |
|---|
| 2840 | | - | agreement that the facts stated in the certificate remain true |
|---|
| 2841 | | - | immediately prior to such filing. |
|---|
| 2842 | | - | (g) Notwithstanding the requirements of subsection (c), unless |
|---|
| 2843 | | - | expressly required by its articles of incorporation, no vote of |
|---|
| 2844 | | - | stockholders of a constituent corporation shall be necessary to authorize |
|---|
| 2845 | | - | a merger with or into a single direct or indirect wholly-owned |
|---|
| 2846 | | - | subsidiary of such constituent corporation if: |
|---|
| 2847 | | - | (1) Such constituent corporation and the direct or indirect wholly- |
|---|
| 2848 | | - | owned subsidiary of such constituent corporation are the only |
|---|
| 2849 | | - | constituent entities to the merger; |
|---|
| 2850 | | - | (2) each share or fraction of a share of the capital stock of the |
|---|
| 2851 | | - | constituent corporation outstanding immediately prior to the effective H Sub for SENATE BILL No. 244—page 49 |
|---|
| 2852 | | - | time of the merger is converted in the merger into a share or equal |
|---|
| 2853 | | - | fraction of share of capital stock of a holding company having the same |
|---|
| 2854 | | - | designations, rights, powers and preferences, and the qualifications, |
|---|
| 2855 | | - | limitations and restrictions thereof, as the share of stock of the |
|---|
| 2856 | | - | constituent corporation being converted in the merger; |
|---|
| 2857 | | - | (3) the holding company and the constituent corporation are |
|---|
| 2858 | | - | corporations of this state and the direct or indirect wholly-owned |
|---|
| 2859 | | - | subsidiary that is the other constituent entity to the merger is a |
|---|
| 2860 | | - | corporation or limited liability company of this state; |
|---|
| 2861 | | - | (4) the articles of incorporation and bylaws of the holding |
|---|
| 2862 | | - | company immediately following the effective time of the merger |
|---|
| 2863 | | - | contain provisions identical to the articles of incorporation and bylaws |
|---|
| 2864 | | - | of the constituent corporation immediately prior to the effective time of |
|---|
| 2865 | | - | the merger, other than provisions, if any, regarding the incorporator or |
|---|
| 2866 | | - | incorporators, the corporate name, the registered office and agent, the |
|---|
| 2867 | | - | initial board of directors and the initial subscribers for shares and such |
|---|
| 2868 | | - | provisions contained in any amendment to the articles of incorporation |
|---|
| 2869 | | - | as were necessary to effect a change, exchange, reclassification, |
|---|
| 2870 | | - | subdivision, combination or cancellation of stock, if such change, |
|---|
| 2871 | | - | exchange, reclassification, subdivision, combination or cancellation has |
|---|
| 2872 | | - | become effective; |
|---|
| 2873 | | - | (5) as a result of the merger the constituent corporation or its |
|---|
| 2874 | | - | successor becomes or remains a direct or indirect wholly-owned |
|---|
| 2875 | | - | subsidiary of the holding company; |
|---|
| 2876 | | - | (6) the directors of the constituent corporation become or remain |
|---|
| 2877 | | - | the directors of the holding company upon the effective time of the |
|---|
| 2878 | | - | merger; |
|---|
| 2879 | | - | (7) (A) with respect to a merger or consolidation consummated |
|---|
| 2880 | | - | pursuant to an agreement entered into or resolutions of the board of |
|---|
| 2881 | | - | directors adopted on or after July 1, 2023, the organizational |
|---|
| 2882 | | - | documents of the surviving entity immediately following the effective |
|---|
| 2883 | | - | time of the merger contain provisions identical to the articles of |
|---|
| 2884 | | - | incorporation of the constituent corporation immediately prior to the |
|---|
| 2885 | | - | effective time of the merger, other than provisions, if any, regarding the |
|---|
| 2886 | | - | incorporator or incorporators, the corporate or entity name, the |
|---|
| 2887 | | - | registered office and agent, the initial board of directors and the initial |
|---|
| 2888 | | - | subscribers for shares, references to members rather than stockholders |
|---|
| 2889 | | - | or shareholders, references to interests, units or the like rather than |
|---|
| 2890 | | - | stock or shares, references to managers, managing members or other |
|---|
| 2891 | | - | members of the governing body rather than directors and such |
|---|
| 2892 | | - | provisions contained in any amendment to the articles of incorporation |
|---|
| 2893 | | - | as were necessary to effect a change, exchange, reclassification, |
|---|
| 2894 | | - | subdivision, combination or cancellation of stock, if such change, |
|---|
| 2895 | | - | exchange, reclassification, subdivision, combination or cancellation has |
|---|
| 2896 | | - | become effective; |
|---|
| 2897 | | - | (B) if the organizational documents of the surviving entity do not |
|---|
| 2898 | | - | contain the following provisions, such documents shall be amended in |
|---|
| 2899 | | - | the merger to contain provisions requiring that: |
|---|
| 2900 | | - | (i) Any act or transaction by or involving the surviving entity, |
|---|
| 2901 | | - | other than the election or removal of directors or managers, managing |
|---|
| 2902 | | - | members or other members of the governing body of the surviving |
|---|
| 2903 | | - | entity, that requires, if taken by the constituent corporation immediately |
|---|
| 2904 | | - | prior to the effective time of the merger, would require, for its adoption |
|---|
| 2905 | | - | under this code or its organizational documents under the articles of |
|---|
| 2906 | | - | incorporation or bylaws of the constituent corporation immediately |
|---|
| 2907 | | - | prior to the effective time of the merger, the approval of the |
|---|
| 2908 | | - | stockholders or members of the surviving entity of the constituent |
|---|
| 2909 | | - | corporation shall, by specific reference to this subsection, require, in |
|---|
| 2910 | | - | addition to approval of the stockholders or members of the surviving H Sub for SENATE BILL No. 244—page 50 |
|---|
| 2911 | | - | entity, the approval of the stockholders of the holding company, or any |
|---|
| 2912 | | - | successor by merger, by the same vote as is required by this code or by |
|---|
| 2913 | | - | the organizational documents of the surviving entity articles of |
|---|
| 2914 | | - | incorporation or bylaws of the constituent corporation immediately |
|---|
| 2915 | | - | prior to the effective time of the merger, or both. For purposes of this |
|---|
| 2916 | | - | clause, any surviving entity that is not a corporation shall include in |
|---|
| 2917 | | - | such amendment a requirement that the approval of the stockholders of |
|---|
| 2918 | | - | the holding company be obtained for any act or transaction by or |
|---|
| 2919 | | - | involving the surviving entity, other than the election or removal of |
|---|
| 2920 | | - | directors or managers, managing members or other members of the |
|---|
| 2921 | | - | governing body of the surviving entity, which would require the |
|---|
| 2922 | | - | approval of the stockholders of the surviving entity if the surviving |
|---|
| 2923 | | - | entity were a corporation subject to this code; |
|---|
| 2924 | | - | (ii) any amendment of the organizational documents of a surviving |
|---|
| 2925 | | - | entity that is not a corporation, which amendment that would, if |
|---|
| 2926 | | - | adopted by a corporation subject to this code, be required to be |
|---|
| 2927 | | - | included in the articles of incorporation of such corporation, shall, by |
|---|
| 2928 | | - | specific reference to this subsection, require, in addition, the approval |
|---|
| 2929 | | - | of the stockholders of the holding company, or any successor by |
|---|
| 2930 | | - | merger, by the same vote as is required by this code or by the |
|---|
| 2931 | | - | organizational documents of the surviving entity articles of |
|---|
| 2932 | | - | incorporation or bylaws of the constituent corporation immediately |
|---|
| 2933 | | - | prior to the effective time of the merger, or both; and |
|---|
| 2934 | | - | (iii)(ii) the business and affairs of a surviving entity that is not a |
|---|
| 2935 | | - | corporation shall be managed by or under the direction of a board of |
|---|
| 2936 | | - | directors, board of managers or other governing body consisting of |
|---|
| 2937 | | - | individuals who are subject to the same fiduciary duties applicable to, |
|---|
| 2938 | | - | and who are liable for breach of such duties to the same extent as, |
|---|
| 2939 | | - | directors of a corporation subject to this code; and |
|---|
| 2940 | | - | (C) the organizational documents of the surviving entity may be |
|---|
| 2941 | | - | amended in the merger to: (i) Reduce the number of classes and shares |
|---|
| 2942 | | - | of capital stock or other equity interests or units that the surviving |
|---|
| 2943 | | - | entity is authorized to issue; and (ii) eliminate any provision authorized |
|---|
| 2944 | | - | by K.S.A. 17-6301(d), and amendments thereto; and |
|---|
| 2945 | | - | (B) with respect to mergers or consolidations consummated prior |
|---|
| 2946 | | - | to July 1, 2023: |
|---|
| 2947 | | - | (i) The organizational documents of the surviving entity |
|---|
| 2948 | | - | immediately following the effective time of the merger contain |
|---|
| 2949 | | - | provisions identical to the articles of incorporation of the constituent |
|---|
| 2950 | | - | corporation immediately prior to the effective time of the merger, other |
|---|
| 2951 | | - | than provisions, if any, regarding the incorporator or incorporators, |
|---|
| 2952 | | - | the corporate or entity name, the registered office and agent, the initial |
|---|
| 2953 | | - | board of directors and the initial subscribers for shares, references to |
|---|
| 2954 | | - | members rather than stockholders or shareholders, references to |
|---|
| 2955 | | - | interests, units or the like rather than stock or shares, references to |
|---|
| 2956 | | - | managers, managing members or other members of the governing body |
|---|
| 2957 | | - | rather than directors and such provisions contained in any amendment |
|---|
| 2958 | | - | to the articles of incorporation as were necessary to effect a change, |
|---|
| 2959 | | - | exchange, reclassification, subdivision, combination or cancellation of |
|---|
| 2960 | | - | stock, if such change, exchange, reclassification, subdivision, |
|---|
| 2961 | | - | combination or cancellation has become effective; |
|---|
| 2962 | | - | (ii) if the organizational documents of the surviving entity do not |
|---|
| 2963 | | - | contain the following provisions, such documents shall be amended in |
|---|
| 2964 | | - | the merger to contain provisions requiring that: |
|---|
| 2965 | | - | (a) Any act or transaction by or involving the surviving entity, |
|---|
| 2966 | | - | other than the election or removal of directors or managers, managing |
|---|
| 2967 | | - | members or other members of the governing body of the surviving |
|---|
| 2968 | | - | entity, that requires for its adoption under this code or its |
|---|
| 2969 | | - | organizational documents the approval of the stockholders or members H Sub for SENATE BILL No. 244—page 51 |
|---|
| 2970 | | - | of the surviving entity shall, by specific reference to this subsection, |
|---|
| 2971 | | - | require, in addition, the approval of the stockholders of the holding |
|---|
| 2972 | | - | company, or any successor by merger, by the same vote as is required |
|---|
| 2973 | | - | by this code or by the organizational documents of the surviving entity, |
|---|
| 2974 | | - | or both. For purposes of this subclause, any surviving entity that is not |
|---|
| 2975 | | - | a corporation shall include in such amendment a requirement that the |
|---|
| 2976 | | - | approval of the stockholders of the holding company be obtained for |
|---|
| 2977 | | - | any act or transaction by or involving the surviving entity, other than |
|---|
| 2978 | | - | the election or removal of directors or managers, managing members |
|---|
| 2979 | | - | or other members of the governing body of the surviving entity, that |
|---|
| 2980 | | - | would require the approval of the stockholders of the surviving entity if |
|---|
| 2981 | | - | the surviving entity were a corporation subject to this code; |
|---|
| 2982 | | - | (b) any amendment of the organizational documents of a surviving |
|---|
| 2983 | | - | entity that is not a corporation that would, if adopted by a corporation |
|---|
| 2984 | | - | subject to this code, be required to be included in the articles of |
|---|
| 2985 | | - | incorporation of such corporation, shall require, by specific reference |
|---|
| 2986 | | - | to this subsection, the approval of the stockholders of the holding |
|---|
| 2987 | | - | company, or any successor by merger, by the same vote as is required |
|---|
| 2988 | | - | by this code or by the organizational documents of the surviving entity |
|---|
| 2989 | | - | or both; and |
|---|
| 2990 | | - | (c) the business and affairs of a surviving entity that is not a |
|---|
| 2991 | | - | corporation shall be managed by or under the direction of a board of |
|---|
| 2992 | | - | directors, board of managers or other governing body consisting of |
|---|
| 2993 | | - | individuals who are subject to the same fiduciary duties applicable to, |
|---|
| 2994 | | - | and who are liable for breach of such duties to the same extent as, |
|---|
| 2995 | | - | directors of a corporation subject to this code; and |
|---|
| 2996 | | - | (iii) the organizational documents of the surviving entity may be |
|---|
| 2997 | | - | amended in the merger to: |
|---|
| 2998 | | - | (a) Reduce the number of classes and shares of capital stock or |
|---|
| 2999 | | - | other equity interests or units that the surviving entity is authorized to |
|---|
| 3000 | | - | issue; and |
|---|
| 3001 | | - | (b) eliminate any provision authorized by K.S.A. 17-6301(d), and |
|---|
| 3002 | | - | amendments thereto; and |
|---|
| 3003 | | - | (8) the stockholders of the constituent corporation do not |
|---|
| 3004 | | - | recognize gain or loss for United States federal income tax purposes as |
|---|
| 3005 | | - | determined by the board of directors of the constituent corporation. |
|---|
| 3006 | | - | Neither subsection (g)(7)(B) nor any provision of a surviving entity's |
|---|
| 3007 | | - | organizational documents required by subsection (g)(7)(B) shall be |
|---|
| 3008 | | - | deemed or construed to require approval of the stockholders of the |
|---|
| 3009 | | - | holding company to elect or remove directors or managers, managing |
|---|
| 3010 | | - | members or other members of the governing body of the surviving |
|---|
| 3011 | | - | entity. |
|---|
| 3012 | | - | The term "Organizational documents," as used in subsection |
|---|
| 3013 | | - | subsections (g)(7) and (g)(8), when used in reference to a corporation, |
|---|
| 3014 | | - | means the articles of incorporation of such corporation and, when used |
|---|
| 3015 | | - | in reference to a limited liability company, means the articles of |
|---|
| 3016 | | - | organization or operating agreement of such limited liability company. |
|---|
| 3017 | | - | As used in this subsection, the term "holding company" means a |
|---|
| 3018 | | - | corporation which that, from its incorporation until consummation of a |
|---|
| 3019 | | - | merger governed by this subsection, was at all times a direct or indirect |
|---|
| 3020 | | - | wholly-owned subsidiary of the constituent corporation and whose |
|---|
| 3021 | | - | capital stock is issued in such merger. From and after the effective time |
|---|
| 3022 | | - | of a merger adopted by a constituent corporation by action of its board |
|---|
| 3023 | | - | of directors and without any vote of stockholders pursuant to this |
|---|
| 3024 | | - | subsection: (1) To the extent the restriction of K.S.A. 2022 Supp. 17- |
|---|
| 3025 | | - | 6427, and amendments thereto, applied to the constituent corporation |
|---|
| 3026 | | - | and its stockholders at the effective time of the merger, such restrictions |
|---|
| 3027 | | - | shall apply to the holding company and its stockholders immediately |
|---|
| 3028 | | - | after the effective time of the merger as though it were the constituent H Sub for SENATE BILL No. 244—page 52 |
|---|
| 3029 | | - | corporation, and all shares of stock of the holding company acquired in |
|---|
| 3030 | | - | the merger shall for purposes of K.S.A. 2022 Supp. 17-6427, and |
|---|
| 3031 | | - | amendments thereto, be deemed to have been acquired at the time that |
|---|
| 3032 | | - | the shares of stock of the constituent corporation converted in the |
|---|
| 3033 | | - | merger were acquired, and provided further that. Any stockholder who |
|---|
| 3034 | | - | immediately prior to the effective time of the merger was not an |
|---|
| 3035 | | - | interested stockholder within the meaning of K.S.A. 2022 Supp. 17- |
|---|
| 3036 | | - | 6427, and amendments thereto, shall not solely by reason of the merger |
|---|
| 3037 | | - | become an interested stockholder of the holding company; (2) if the |
|---|
| 3038 | | - | corporate name of the holding company immediately following the |
|---|
| 3039 | | - | effective time of the merger is the same as the corporate name of the |
|---|
| 3040 | | - | constituent corporation immediately prior to the effective time of the |
|---|
| 3041 | | - | merger, the shares of capital stock of the holding company into which |
|---|
| 3042 | | - | the shares of capital stock of the constituent corporation are converted |
|---|
| 3043 | | - | in the merger shall be represented by the stock certificates that |
|---|
| 3044 | | - | previously represented shares of capital stock of the constituent |
|---|
| 3045 | | - | corporation; and (3) to the extent a stockholder of the constituent |
|---|
| 3046 | | - | corporation immediately prior to the merger had standing to institute or |
|---|
| 3047 | | - | maintain derivative litigation on behalf of the constituent corporation, |
|---|
| 3048 | | - | nothing in this section shall be deemed to limit or extinguish such |
|---|
| 3049 | | - | standing. If an agreement of merger is adopted by a constituent |
|---|
| 3050 | | - | corporation by action of its board of directors and without any vote of |
|---|
| 3051 | | - | stockholders pursuant to this subsection, the secretary or assistant |
|---|
| 3052 | | - | secretary of the constituent corporation shall certify on the agreement |
|---|
| 3053 | | - | that the agreement has been adopted pursuant to this subsection and |
|---|
| 3054 | | - | that the conditions specified in the first sentence of this subsection have |
|---|
| 3055 | | - | been satisfied, except that such certification on the agreement shall not |
|---|
| 3056 | | - | be required if a certificate of merger or consolidation is filled filed in |
|---|
| 3057 | | - | lieu of filing the agreement. The agreement so adopted and certified |
|---|
| 3058 | | - | shall then be executed, filed and become effective, in accordance with |
|---|
| 3059 | | - | K.S.A. 2022 Supp. 17-7908 through 17-7911, and amendments thereto. |
|---|
| 3060 | | - | Such filing shall constitute a representation by the person who executes |
|---|
| 3061 | | - | the agreement that the facts stated in the certificate remain true |
|---|
| 3062 | | - | immediately prior to such filing. |
|---|
| 3063 | | - | (h) (1) Notwithstanding the requirements of subsection (c), unless |
|---|
| 3064 | | - | expressly required by its articles of incorporation, no vote of |
|---|
| 3065 | | - | stockholders of a constituent corporation whose shares are that has a |
|---|
| 3066 | | - | class or series of stock that is listed on a national securities exchange or |
|---|
| 3067 | | - | held of record by more than 2,000 holders immediately prior to the |
|---|
| 3068 | | - | execution of the agreement of merger by such constituent corporation |
|---|
| 3069 | | - | shall be necessary to authorize a merger if: |
|---|
| 3070 | | - | (A) The agreement of merger expressly: |
|---|
| 3071 | | - | (i) Permits or requires such merger to be effected under this |
|---|
| 3072 | | - | subsection; and |
|---|
| 3073 | | - | (ii) provides that such merger shall be effected as soon as |
|---|
| 3074 | | - | practicable following the consummation of the offer referred to in |
|---|
| 3075 | | - | subsection (i)(1)(B) (h)(1)(B) if such merger is effected under this |
|---|
| 3076 | | - | subsection; |
|---|
| 3077 | | - | (B) a corporation consummates a tender or exchange an offer for |
|---|
| 3078 | | - | any and all of the outstanding stock of such constituent corporation on |
|---|
| 3079 | | - | the terms provided in such agreement of merger that, absent this |
|---|
| 3080 | | - | subsection, would be entitled to vote on the adoption or rejection of the |
|---|
| 3081 | | - | agreement of merger, except that such offer may exclude stock of such |
|---|
| 3082 | | - | constituent corporation that is owned at the commencement of such |
|---|
| 3083 | | - | offer by: (i) Such constituent corporation; (ii) the corporation making |
|---|
| 3084 | | - | such offer; (iii) any person that owns, directly or indirectly, all of the |
|---|
| 3085 | | - | outstanding stock of the corporation making such offer; or (iv) any |
|---|
| 3086 | | - | direct or indirect wholly owned subsidiary of any of the foregoing be |
|---|
| 3087 | | - | conditioned on the tender of a minimum number or percentage of H Sub for SENATE BILL No. 244—page 53 |
|---|
| 3088 | | - | shares of stock of such constituent corporation, or of any class or |
|---|
| 3089 | | - | series thereof, and such offer may exclude any excluded stock. The |
|---|
| 3090 | | - | corporation may consummate separate offers for separate classes or |
|---|
| 3091 | | - | series of the stock of such constituent corporation; |
|---|
| 3092 | | - | (C) immediately following the consummation of the offer referred |
|---|
| 3093 | | - | to in subsection (i)(1)(B) (h)(1)(B), the stock irrevocably accepted for |
|---|
| 3094 | | - | purchase or exchange pursuant to such offer and received by the |
|---|
| 3095 | | - | depository prior to expiration of such offer, plus together with the stock |
|---|
| 3096 | | - | otherwise owned by the consummating corporation or its affiliates and |
|---|
| 3097 | | - | any rollover stock, equals at least such percentage of the shares of stock |
|---|
| 3098 | | - | of such constituent corporation, and of each class or series thereof, of |
|---|
| 3099 | | - | such constituent corporation that, absent this subsection, would be |
|---|
| 3100 | | - | required to adopt the agreement of merger by this code and by the |
|---|
| 3101 | | - | articles of incorporation of such constituent corporation; |
|---|
| 3102 | | - | (D) the corporation consummating the offer described in |
|---|
| 3103 | | - | subsection (i)(1)(B) (h)(1)(B) merges with or into such constituent |
|---|
| 3104 | | - | corporation pursuant to such agreement; and |
|---|
| 3105 | | - | (E) each outstanding share, other than shares of excluded stock, of |
|---|
| 3106 | | - | each class or series of stock of the such constituent corporation that is |
|---|
| 3107 | | - | the subject of and is not irrevocably accepted for purchase or exchange |
|---|
| 3108 | | - | in the offer referred to in subsection (i)(1)(B) (h)(1)(B) is to be |
|---|
| 3109 | | - | converted in such merger into, or into the right to receive, the same |
|---|
| 3110 | | - | amount and kind of cash, property, rights or securities to be paid for |
|---|
| 3111 | | - | shares of such class or series of stock of such constituent corporation |
|---|
| 3112 | | - | irrevocably accepted for purchase or exchange in such offer. |
|---|
| 3113 | | - | (2) As used in this subsection, the term: |
|---|
| 3114 | | - | (A) "Affiliate" means, in respect of the corporation making the |
|---|
| 3115 | | - | offer referred to in subsection (h)(1)(B), any person that: |
|---|
| 3116 | | - | (i) Owns, directly or indirectly, all of the outstanding stock of such |
|---|
| 3117 | | - | corporation; or |
|---|
| 3118 | | - | (ii) is a direct or indirect wholly-owned subsidiary of such |
|---|
| 3119 | | - | corporation or of any person referred to in clause (i); |
|---|
| 3120 | | - | (B) "consummates," and with correlative meaning, |
|---|
| 3121 | | - | "consummation" and "consummating," means irrevocably accepts for |
|---|
| 3122 | | - | purchase or exchange stock tendered pursuant to a tender or exchange |
|---|
| 3123 | | - | an offer; |
|---|
| 3124 | | - | (B)(C) "depository" means an agent, including a depository, |
|---|
| 3125 | | - | appointed to facilitate consummation of the offer referred to in |
|---|
| 3126 | | - | subsection (i)(1)(B) (h)(1)(B); |
|---|
| 3127 | | - | (C)(D) "excluded stock" means: |
|---|
| 3128 | | - | (i) Stock of such constituent corporation that is owned at the |
|---|
| 3129 | | - | commencement of the offer referred to in subsection (h)(1)(B) by such |
|---|
| 3130 | | - | constituent corporation, the corporation making the offer referred to in |
|---|
| 3131 | | - | subsection (h)(1)(B), any person that owns, directly or indirectly, all of |
|---|
| 3132 | | - | the outstanding stock of the corporation making such offer or any |
|---|
| 3133 | | - | direct or indirect wholly-owned subsidiary of any of the foregoing; and |
|---|
| 3134 | | - | (ii) rollover stock; |
|---|
| 3135 | | - | (E) "person" means any individual, corporation, partnership, |
|---|
| 3136 | | - | limited liability company, unincorporated association or other entity; |
|---|
| 3137 | | - | and |
|---|
| 3138 | | - | (D)(F) "received," solely for purposes of subsection (i)(1)(C) (h) |
|---|
| 3139 | | - | (1)(C), means: |
|---|
| 3140 | | - | (i) With respect to certificated shares, physical receipt of a stock |
|---|
| 3141 | | - | certificate in the case of certificated shares and transfer into the |
|---|
| 3142 | | - | depository's account, or an agent's message being received by the |
|---|
| 3143 | | - | depository, in the case of uncertificated shares accompanied by an |
|---|
| 3144 | | - | executed letter of transmittal; |
|---|
| 3145 | | - | (ii) with respect to uncertificated shares held of record by a |
|---|
| 3146 | | - | clearing corporation as nominee, transfer into the depository's account H Sub for SENATE BILL No. 244—page 54 |
|---|
| 3147 | | - | by means of an agent's message; and |
|---|
| 3148 | | - | (iii) with respect to uncertificated shares held of record by a |
|---|
| 3149 | | - | person other than a clearing corporation as nominee, physical receipt |
|---|
| 3150 | | - | of an executed letter of transmittal by the depository, except that shares |
|---|
| 3151 | | - | shall cease to be "received" pursuant to the following: |
|---|
| 3152 | | - | (a) With respect to certificated shares, if the certificate |
|---|
| 3153 | | - | representing such shares was canceled prior to consummation of the |
|---|
| 3154 | | - | offer referred to in subsection (h)(1)(B); or |
|---|
| 3155 | | - | (b) with respect to uncertificated shares, to the extent such |
|---|
| 3156 | | - | uncertificated shares have been reduced or eliminated due to any sale |
|---|
| 3157 | | - | of such shares prior to consummation of the offer referred to in |
|---|
| 3158 | | - | subsection (h)(1)(B); and |
|---|
| 3159 | | - | (G) "rollover stock" means any shares of stock of such constituent |
|---|
| 3160 | | - | corporation that are the subject of a written agreement requiring such |
|---|
| 3161 | | - | shares to be transferred, contributed or delivered to the consummating |
|---|
| 3162 | | - | corporation or any of its affiliates in exchange for stock or other equity |
|---|
| 3163 | | - | interests in such consummating corporation or an affiliate thereof, |
|---|
| 3164 | | - | except that such shares of stock shall cease to be rollover stock for |
|---|
| 3165 | | - | purposes of subsection (h)(1)(C) if, immediately prior to the time the |
|---|
| 3166 | | - | merger becomes effective under this code, such shares have not been |
|---|
| 3167 | | - | transferred, contributed or delivered to the consummating corporation |
|---|
| 3168 | | - | or any of its affiliates pursuant to such written agreement. |
|---|
| 3169 | | - | (3) If an agreement of merger is adopted without the vote of |
|---|
| 3170 | | - | stockholders of a corporation pursuant to this subsection, the secretary |
|---|
| 3171 | | - | or assistant secretary of the surviving corporation shall certify on the |
|---|
| 3172 | | - | agreement that the agreement has been adopted pursuant to this |
|---|
| 3173 | | - | subsection and that the conditions specified in this subsection, other |
|---|
| 3174 | | - | than the condition listed in subsection (i)(1)(D) (h)(1)(D), have been |
|---|
| 3175 | | - | satisfied, except that such certification on the agreement shall not be |
|---|
| 3176 | | - | required if a certificate of merger is filed in lieu of filing the agreement. |
|---|
| 3177 | | - | The agreement so adopted and certified shall then be executed and filed |
|---|
| 3178 | | - | and shall become effective, in accordance with K.S.A. 2022 Supp. 17- |
|---|
| 3179 | | - | 7908 through 17-7911, and amendments thereto. Such filing shall |
|---|
| 3180 | | - | constitute a representation by the person who executes the agreement |
|---|
| 3181 | | - | that the facts stated in the certificate remain true immediately prior to |
|---|
| 3182 | | - | such filing. |
|---|
| 3183 | | - | (4) This subsection shall be effective only with respect to merger |
|---|
| 3184 | | - | agreements entered into on or after July 1, 2023. This subsection, prior |
|---|
| 3185 | | - | to its amendment by this act, shall be effective with respect to merger |
|---|
| 3186 | | - | agreements entered into before July 1, 2023. |
|---|
| 3187 | | - | Sec. 30. K.S.A. 2022 Supp. 17-6702 is hereby amended to read as |
|---|
| 3188 | | - | follows: 17-6702. (a) Any one or more corporations of this state may |
|---|
| 3189 | | - | merge or consolidate with one or more other corporations of any other |
|---|
| 3190 | | - | state or states of the United States, or of the District of Columbia if the |
|---|
| 3191 | | - | laws of such other jurisdiction permit a corporation of such jurisdiction |
|---|
| 3192 | | - | to merge or consolidate with a corporation of another jurisdiction |
|---|
| 3193 | | - | foreign corporations unless the laws of the jurisdiction or jurisdictions |
|---|
| 3194 | | - | under which such foreign corporation or corporations are organized |
|---|
| 3195 | | - | prohibit such merger or consolidation. The constituent corporations |
|---|
| 3196 | | - | may merge into a single surviving corporation, which may be any one |
|---|
| 3197 | | - | of the constituent corporations, or they may consolidate into a new |
|---|
| 3198 | | - | resulting corporation formed by the consolidation, which may be a |
|---|
| 3199 | | - | corporation of the state jurisdiction of incorporation organization of |
|---|
| 3200 | | - | any one of the constituent corporations, pursuant to an agreement of |
|---|
| 3201 | | - | merger or consolidation, as the case may be, complying and approved |
|---|
| 3202 | | - | in accordance with this section. In addition, any one or more |
|---|
| 3203 | | - | corporations organized under the laws of any jurisdiction other than |
|---|
| 3204 | | - | one of the United States may merge or consolidate with one or more |
|---|
| 3205 | | - | corporations existing under the laws of this state, if the laws under H Sub for SENATE BILL No. 244—page 55 |
|---|
| 3206 | | - | which the other corporation or corporations are formed permit a |
|---|
| 3207 | | - | corporation of such jurisdiction to merge or consolidate with a |
|---|
| 3208 | | - | corporation of another jurisdiction. |
|---|
| 3209 | | - | (b) (1) All the constituent corporations shall enter into an |
|---|
| 3210 | | - | agreement of merger or consolidation. The agreement shall state: |
|---|
| 3211 | | - | (1)(A) The terms and conditions of the merger or consolidation; |
|---|
| 3212 | | - | (2)(B) the mode of carrying the same into effect; |
|---|
| 3213 | | - | (3)(C) in the case of a merger in which the surviving corporation |
|---|
| 3214 | | - | is a domestic corporation, such amendments or changes in the articles |
|---|
| 3215 | | - | of incorporation of the surviving corporation as are desired to be |
|---|
| 3216 | | - | effected by the merger, which may amend and restate the articles of |
|---|
| 3217 | | - | incorporation of the surviving corporation in its entirety, or, if no such |
|---|
| 3218 | | - | amendments or changes are desired, a statement that the articles of |
|---|
| 3219 | | - | incorporation of the surviving corporation shall be its articles of |
|---|
| 3220 | | - | incorporation; |
|---|
| 3221 | | - | (D) in the case of a consolidation in which the resulting |
|---|
| 3222 | | - | corporation is a domestic corporation, that the articles of |
|---|
| 3223 | | - | incorporation of the resulting corporation shall be as is set forth in an |
|---|
| 3224 | | - | attachment to the agreement; |
|---|
| 3225 | | - | (E) the manner, if any, of converting the shares of each of the |
|---|
| 3226 | | - | constituent corporations into shares or other securities of the |
|---|
| 3227 | | - | corporation surviving or resulting from the merger or consolidation, or |
|---|
| 3228 | | - | of cancelling some or all of such shares, and, if any shares of any of the |
|---|
| 3229 | | - | constituent corporations are not to remain outstanding, to be converted |
|---|
| 3230 | | - | solely into shares or other securities of the surviving or resulting |
|---|
| 3231 | | - | corporation or to be cancelled, the cash, property, rights or securities of |
|---|
| 3232 | | - | any other corporation or entity which that the holders of such shares are |
|---|
| 3233 | | - | to receive in exchange for, or upon conversion of, such shares and the |
|---|
| 3234 | | - | surrender of any certificates evidencing them, which and such cash, |
|---|
| 3235 | | - | property, rights or securities of any other corporation may be in |
|---|
| 3236 | | - | addition to or in lieu of the shares or other securities of the surviving or |
|---|
| 3237 | | - | resulting corporation; (4) |
|---|
| 3238 | | - | (F) such other details or provisions as are deemed desirable, |
|---|
| 3239 | | - | including, without limiting the generality of the foregoing this |
|---|
| 3240 | | - | paragraph, a provision for the payment of cash in lieu of the issuance |
|---|
| 3241 | | - | or recognition of fractional shares, rights or other securities of the |
|---|
| 3242 | | - | surviving or resulting corporation or of any other corporation or entity |
|---|
| 3243 | | - | the shares, rights or other securities of which are to be received in the |
|---|
| 3244 | | - | merger or consolidation, or for some other arrangement with respect |
|---|
| 3245 | | - | thereto consistent with the provisions of K.S.A. 17-6405, and |
|---|
| 3246 | | - | amendments thereto; and |
|---|
| 3247 | | - | (5)(G) such other provisions or facts as shall be required to be set |
|---|
| 3248 | | - | forth in articles of incorporation by the laws of the state which are |
|---|
| 3249 | | - | stated in the agreement to be the laws that shall govern the an |
|---|
| 3250 | | - | agreement of merger or consolidation, including any provision for |
|---|
| 3251 | | - | amendment of the articles of incorporation, or equivalent document, of |
|---|
| 3252 | | - | a surviving or resulting foreign corporation and that can be stated in the |
|---|
| 3253 | | - | case of a merger or consolidation by the laws of each jurisdiction under |
|---|
| 3254 | | - | which any of the foreign corporations are organized. |
|---|
| 3255 | | - | (2) Any of the terms of the agreement of merger or consolidation |
|---|
| 3256 | | - | may be made dependent upon facts ascertainable outside of such |
|---|
| 3257 | | - | agreement, provided that if the manner in which such facts shall operate |
|---|
| 3258 | | - | upon the terms of the agreement is clearly and expressly set forth in the |
|---|
| 3259 | | - | agreement of merger or consolidation. The term "Facts," as used in the |
|---|
| 3260 | | - | preceding sentence, this paragraph, includes, but is not limited to, the |
|---|
| 3261 | | - | occurrence of any event, including a determination or action by any |
|---|
| 3262 | | - | person or body, including the corporation. |
|---|
| 3263 | | - | (c) The agreement shall be adopted, approved, certified and |
|---|
| 3264 | | - | executed by each of the constituent corporations in accordance with the H Sub for SENATE BILL No. 244—page 56 |
|---|
| 3265 | | - | laws under which it is formed organized, and, in the case of a Kansas |
|---|
| 3266 | | - | domestic corporation, in the same manner as provided in K.S.A. 17- |
|---|
| 3267 | | - | 6701, and amendments thereto. The agreement shall be filed and shall |
|---|
| 3268 | | - | become effective for all purposes of the laws of this state when and as |
|---|
| 3269 | | - | provided in K.S.A. 17-6701, and amendments thereto, with respect to |
|---|
| 3270 | | - | the merger or consolidation of corporations of this state. In lieu of filing |
|---|
| 3271 | | - | the agreement of merger or consolidation, the surviving or resulting |
|---|
| 3272 | | - | corporation may file a certificate of merger or consolidation, executed |
|---|
| 3273 | | - | in accordance with K.S.A. 2022 Supp. 17-7908, and amendments |
|---|
| 3274 | | - | thereto, which that states: |
|---|
| 3275 | | - | (1) The name and jurisdiction of incorporation organization of |
|---|
| 3276 | | - | each of the constituents; |
|---|
| 3277 | | - | (2) that an agreement of merger or consolidation has been |
|---|
| 3278 | | - | approved, adopted, certified and executed by each of the constituent |
|---|
| 3279 | | - | corporations in accordance with this section; |
|---|
| 3280 | | - | (3) the name of the surviving or resulting corporation; |
|---|
| 3281 | | - | (4) in the case of a merger in which the surviving corporation is a |
|---|
| 3282 | | - | domestic corporation, such amendments or changes in the articles of |
|---|
| 3283 | | - | incorporation of the surviving corporation as are desired to be effected |
|---|
| 3284 | | - | by the merger, which amendments or changes may amend and restate |
|---|
| 3285 | | - | the articles of incorporation of the surviving corporation in their |
|---|
| 3286 | | - | entirety, or, if no such amendments or changes are desired, a statement |
|---|
| 3287 | | - | that the articles of incorporation of the surviving corporation shall be its |
|---|
| 3288 | | - | articles of incorporation; |
|---|
| 3289 | | - | (5) in the case of a consolidation in which the resulting |
|---|
| 3290 | | - | corporation is a domestic corporation, that the articles of incorporation |
|---|
| 3291 | | - | of the resulting corporation shall be as are set forth in an attachment to |
|---|
| 3292 | | - | the certificate; |
|---|
| 3293 | | - | (6) that the executed agreement of consolidation or merger is on |
|---|
| 3294 | | - | file at the principal place of business of the surviving or resulting |
|---|
| 3295 | | - | corporation and the address thereof; |
|---|
| 3296 | | - | (7) that a copy of the agreement of consolidation or merger will be |
|---|
| 3297 | | - | furnished by the surviving or resulting corporation, on request and |
|---|
| 3298 | | - | without cost, to any stockholder of any constituent corporation; |
|---|
| 3299 | | - | (8) if the corporation surviving or resulting from the merger or |
|---|
| 3300 | | - | consolidation is to be a domestic corporation of this state, the |
|---|
| 3301 | | - | authorized capital stock of each constituent corporation which that is |
|---|
| 3302 | | - | not a domestic corporation of this state; and |
|---|
| 3303 | | - | (9) the agreement, if any, required by subsection (d). |
|---|
| 3304 | | - | (d) If the corporation surviving or resulting from the merger or |
|---|
| 3305 | | - | consolidation is to be governed by the laws of the District of Columbia |
|---|
| 3306 | | - | or any state or jurisdiction other than this state a foreign corporation, it |
|---|
| 3307 | | - | shall agree that it may be served with process in this state in any |
|---|
| 3308 | | - | proceeding for enforcement of any obligation of any constituent |
|---|
| 3309 | | - | domestic corporation of this state, as well as for enforcement of any |
|---|
| 3310 | | - | obligation of the surviving or resulting corporation arising from the |
|---|
| 3311 | | - | merger or consolidation, including any suit or other proceeding to |
|---|
| 3312 | | - | enforce the right of any stockholders as determined in appraisal |
|---|
| 3313 | | - | proceedings pursuant to K.S.A. 17-6712, and amendments thereto, and |
|---|
| 3314 | | - | shall irrevocably appoint the secretary of state as its agent to accept |
|---|
| 3315 | | - | service of process in any such suit or other proceedings and shall |
|---|
| 3316 | | - | specify the postal address to which a copy of such process shall be |
|---|
| 3317 | | - | mailed by the secretary of state. Process may be served upon the |
|---|
| 3318 | | - | secretary of state under this subsection by means of electronic |
|---|
| 3319 | | - | transmission but only as prescribed by the secretary of state. The |
|---|
| 3320 | | - | secretary of state is authorized to issue adopt such rules and regulations |
|---|
| 3321 | | - | with respect to such service as the secretary of state deems necessary or |
|---|
| 3322 | | - | appropriate. In the event of such service upon the secretary of state in |
|---|
| 3323 | | - | accordance with this subsection, the secretary of state shall forthwith H Sub for SENATE BILL No. 244—page 57 |
|---|
| 3324 | | - | immediately notify such surviving or resulting corporation thereof by |
|---|
| 3325 | | - | letter, directed to such surviving or resulting corporation at its address |
|---|
| 3326 | | - | so specified, unless such surviving or resulting corporation shall have |
|---|
| 3327 | | - | designated in writing to the secretary of state a different address for |
|---|
| 3328 | | - | such purpose, in which case it shall be mailed to the last address so |
|---|
| 3329 | | - | designated. Such letter shall be sent by a mail or courier service that |
|---|
| 3330 | | - | includes a record of mailing or deposit with the courier and a record of |
|---|
| 3331 | | - | delivery evidenced by the signature of the recipient. Such letter shall |
|---|
| 3332 | | - | enclose a copy of the process and any other papers served on the |
|---|
| 3333 | | - | secretary of state pursuant to this subsection. It shall be the duty of the |
|---|
| 3334 | | - | plaintiff in the event of such service to serve process and any other |
|---|
| 3335 | | - | papers in duplicate, to notify the secretary of state that service is being |
|---|
| 3336 | | - | effected pursuant to this subsection and to pay the secretary of state the |
|---|
| 3337 | | - | sum of $40 for the use of the state, which. Such sum and any |
|---|
| 3338 | | - | administrative fees shall be taxed as part of the costs of the proceeding, |
|---|
| 3339 | | - | if the plaintiff shall prevail therein prevails. The secretary of state shall |
|---|
| 3340 | | - | maintain a record of any such service in a manner deemed appropriate |
|---|
| 3341 | | - | by the secretary. The secretary of state shall not be required to retain |
|---|
| 3342 | | - | such information longer than five years from receipt of the service of |
|---|
| 3343 | | - | process. |
|---|
| 3344 | | - | (e) K.S.A. 17-6701(d), and amendments thereto, shall apply to any |
|---|
| 3345 | | - | merger or consolidation under this section;. K.S.A. 17-6701(e), and |
|---|
| 3346 | | - | amendments thereto, shall apply to a merger under this section in which |
|---|
| 3347 | | - | the surviving corporation is a domestic corporation of this state; and. |
|---|
| 3348 | | - | K.S.A. 17-6701(f) and (h), and amendments thereto, shall apply to any |
|---|
| 3349 | | - | merger under this section. |
|---|
| 3350 | | - | Sec. 31. K.S.A. 2022 Supp. 17-6703 is hereby amended to read as |
|---|
| 3351 | | - | follows: 17-6703. (a) In any case in which at least 90% of the |
|---|
| 3352 | | - | outstanding shares of each class of the stock of a corporation or |
|---|
| 3353 | | - | corporations, other than a corporation which that has in its articles of |
|---|
| 3354 | | - | incorporation the provisions required by K.S.A. 17-6701(g)(7)(B), and |
|---|
| 3355 | | - | amendments thereto, of which class there are outstanding shares that, |
|---|
| 3356 | | - | absent this subsection, would be entitled to vote on such merger, is |
|---|
| 3357 | | - | owned by another corporation and one of the corporations is a domestic |
|---|
| 3358 | | - | corporation of this state and the other or others are corporations of this |
|---|
| 3359 | | - | state, or any other state or states, or the District of Columbia and the |
|---|
| 3360 | | - | laws of the other state or states, or the District of Columbia permit a |
|---|
| 3361 | | - | corporation of such jurisdiction to merge with a corporation of another |
|---|
| 3362 | | - | jurisdiction, the corporation having such stock ownership may either |
|---|
| 3363 | | - | merge the other or a foreign corporation and one or more of such |
|---|
| 3364 | | - | corporations is a domestic corporation, unless the laws of the |
|---|
| 3365 | | - | jurisdiction or jurisdictions under which the foreign corporation or |
|---|
| 3366 | | - | corporations are organized prohibit such merger, the parent |
|---|
| 3367 | | - | corporation may either merge the subsidiary corporation or |
|---|
| 3368 | | - | corporations into itself and assume all of its or their obligations, or |
|---|
| 3369 | | - | merge itself, or itself and one or more of such other subsidiary |
|---|
| 3370 | | - | corporations, into one of such other subsidiary corporations by |
|---|
| 3371 | | - | executing and filing, in accordance with K.S.A. 2022 Supp. 17-7908 |
|---|
| 3372 | | - | through 17-7910, and amendments thereto, a certificate of such |
|---|
| 3373 | | - | ownership and merger setting forth a copy of the resolution of its board |
|---|
| 3374 | | - | of directors to so merge and the date of the adoption thereof, except |
|---|
| 3375 | | - | that in case the parent corporation shall not own all the outstanding |
|---|
| 3376 | | - | stock of all the subsidiary corporations, parties to a merger as provided |
|---|
| 3377 | | - | in this section, the resolution of the board of directors of the parent |
|---|
| 3378 | | - | corporation shall state the terms and conditions of the merger, including |
|---|
| 3379 | | - | the securities, cash, property or rights to be issued, paid, delivered or |
|---|
| 3380 | | - | granted by the surviving corporation upon surrender of each share of |
|---|
| 3381 | | - | the subsidiary corporation or corporations not owned by the parent |
|---|
| 3382 | | - | corporation, or the cancellation of some or all of such shares. Any of H Sub for SENATE BILL No. 244—page 58 |
|---|
| 3383 | | - | the terms of the resolution of the board of directors to so merge may be |
|---|
| 3384 | | - | made dependent upon facts ascertainable outside of such resolution, |
|---|
| 3385 | | - | provided that if the manner in which such facts shall operate upon the |
|---|
| 3386 | | - | terms of the resolution is clearly and expressly set forth in the |
|---|
| 3387 | | - | resolution. The term "Facts," as used in the preceding sentence, |
|---|
| 3388 | | - | includes, but is not limited to, the occurrence of any event, including a |
|---|
| 3389 | | - | determination or action by any person or body, including the |
|---|
| 3390 | | - | corporation. If the parent corporation be is not the surviving |
|---|
| 3391 | | - | corporation, the resolution shall include provision for the pro rata |
|---|
| 3392 | | - | issuance of stock of the surviving corporation to the holders of the |
|---|
| 3393 | | - | stock of the parent corporation on surrender of any certificates therefor, |
|---|
| 3394 | | - | and the certificate of ownership and merger shall state that the proposed |
|---|
| 3395 | | - | merger has been approved by a majority of the outstanding stock of the |
|---|
| 3396 | | - | parent corporation entitled to vote thereon at a meeting duly called and |
|---|
| 3397 | | - | held after 20 days' notice of the purpose of the meeting mailed given to |
|---|
| 3398 | | - | each such stockholder at the stockholder's postal address as it appears |
|---|
| 3399 | | - | on the records of the corporation, if the parent corporation is a domestic |
|---|
| 3400 | | - | corporation of this state, or the certificate shall state that the proposed |
|---|
| 3401 | | - | merger has been adopted, approved, certified and executed by the |
|---|
| 3402 | | - | parent corporation in accordance with the laws under which it is |
|---|
| 3403 | | - | organized, if the parent corporation is not a foreign corporation of this |
|---|
| 3404 | | - | state. |
|---|
| 3405 | | - | (b) If the surviving corporation exists under the laws of the |
|---|
| 3406 | | - | District of Columbia or any state or jurisdiction other than this state is |
|---|
| 3407 | | - | a foreign corporation: |
|---|
| 3408 | | - | (1) K.S.A. 17-6702(d) or 17-6708(c), and amendments thereto, as |
|---|
| 3409 | | - | applicable, shall also apply to a merger under this section; and |
|---|
| 3410 | | - | (2) the terms and conditions of the merger shall obligate the |
|---|
| 3411 | | - | surviving corporation to provide the agreement and take the actions |
|---|
| 3412 | | - | required by K.S.A. 17-6702(d) or 17-6708(c), and amendments thereto, |
|---|
| 3413 | | - | as applicable. |
|---|
| 3414 | | - | (b)(c) If the surviving corporation is a Kansas domestic |
|---|
| 3415 | | - | corporation, it may change its corporate name by the inclusion of a |
|---|
| 3416 | | - | provision to that effect in the resolution of merger adopted by the |
|---|
| 3417 | | - | directors of the parent corporation and set forth in the certificate of |
|---|
| 3418 | | - | ownership and merger, and upon the effective date of the merger, the |
|---|
| 3419 | | - | name of the corporation shall be changed. |
|---|
| 3420 | | - | (c)(d) K.S.A. 17-6701(d), and amendments thereto, shall apply to |
|---|
| 3421 | | - | a merger under this section, and K.S.A. 17-6701(e), and amendments |
|---|
| 3422 | | - | thereto, shall apply to a merger under this section in which the |
|---|
| 3423 | | - | surviving corporation is the subsidiary corporation and is a domestic |
|---|
| 3424 | | - | corporation of this state. References to "agreement of merger" in |
|---|
| 3425 | | - | K.S.A. 17-6701(d) and (e), and amendments thereto, shall mean, for |
|---|
| 3426 | | - | purposes of this subsection, the resolution of merger adopted by the |
|---|
| 3427 | | - | board of directors of the parent corporation. Any merger which that |
|---|
| 3428 | | - | effects any changes other than those authorized by this section or made |
|---|
| 3429 | | - | applicable by this subsection shall be accomplished under the |
|---|
| 3430 | | - | provisions of K.S.A. 17-6701, 17-6702, 17-6707 or 17-6708, and |
|---|
| 3431 | | - | amendments thereto. K.S.A. 17-6712, and amendments thereto, shall |
|---|
| 3432 | | - | not apply to any merger effected under this section, except as provided |
|---|
| 3433 | | - | in subsection (d) (e). |
|---|
| 3434 | | - | (d)(e) In the event all of the stock of a subsidiary Kansas domestic |
|---|
| 3435 | | - | corporation party to a merger effected under this section is not owned |
|---|
| 3436 | | - | by the parent corporation immediately prior to the merger, the |
|---|
| 3437 | | - | stockholders of the subsidiary Kansas domestic corporation party to the |
|---|
| 3438 | | - | merger shall have appraisal rights as set forth in K.S.A. 17-6712, and |
|---|
| 3439 | | - | amendments thereto. |
|---|
| 3440 | | - | (e) A merger may be effected under this section although one or |
|---|
| 3441 | | - | more of the corporations parties to the merger is a corporation H Sub for SENATE BILL No. 244—page 59 |
|---|
| 3442 | | - | organized under the laws of a jurisdiction other than one of the United |
|---|
| 3443 | | - | States, if the laws of such jurisdiction permit a corporation of such |
|---|
| 3444 | | - | jurisdiction to merge with a corporation of another jurisdiction. |
|---|
| 3445 | | - | (f) This section shall apply to nonstock corporations if the parent |
|---|
| 3446 | | - | corporation is such a corporation and is the surviving corporation of the |
|---|
| 3447 | | - | merger, except that references to the directors of the parent corporation |
|---|
| 3448 | | - | shall be deemed to be references to members of the governing body of |
|---|
| 3449 | | - | the parent corporation, and references to the board of directors of the |
|---|
| 3450 | | - | parent corporation shall be deemed to be references to the governing |
|---|
| 3451 | | - | body of the parent corporation. |
|---|
| 3452 | | - | (g) Nothing in this section shall be deemed to authorize the merger |
|---|
| 3453 | | - | of a corporation with a charitable nonstock corporation, if the charitable |
|---|
| 3454 | | - | status of such charitable nonstock corporation would thereby be lost or |
|---|
| 3455 | | - | impaired. |
|---|
| 3456 | | - | Sec. 32. K.S.A. 2022 Supp. 17-6705 is hereby amended to read as |
|---|
| 3457 | | - | follows: 17-6705. (a) Any two or more nonstock corporations of this |
|---|
| 3458 | | - | state, whether or not organized for profit, may merge into a single |
|---|
| 3459 | | - | surviving corporation, which may be any one of the constituent |
|---|
| 3460 | | - | corporations, or they may consolidate into a new resulting nonstock |
|---|
| 3461 | | - | corporation, whether or not organized for profit, formed by the |
|---|
| 3462 | | - | consolidation, pursuant to an agreement of merger or consolidation, as |
|---|
| 3463 | | - | the case may be, complying and approved in accordance with this |
|---|
| 3464 | | - | section. |
|---|
| 3465 | | - | (b) Subject to subsection (d), the governing body of each |
|---|
| 3466 | | - | corporation which that desires to merge or consolidate shall adopt a |
|---|
| 3467 | | - | resolution approving an agreement of merger or consolidation, and the |
|---|
| 3468 | | - | agreement shall be executed by an authorized person in accordance |
|---|
| 3469 | | - | with K.S.A. 2022 Supp. 17-7908, and amendments thereto, and if the |
|---|
| 3470 | | - | agreement is filed, it shall be filed in accordance with K.S.A. 2022 |
|---|
| 3471 | | - | Supp. 17-7910, and amendments thereto. The agreement shall state: |
|---|
| 3472 | | - | (1) The terms and conditions of the merger or consolidation; |
|---|
| 3473 | | - | (2) the mode of carrying the same into effect; |
|---|
| 3474 | | - | (3) such other provisions or facts required or permitted by this |
|---|
| 3475 | | - | code to be stated in articles of incorporation for nonstock corporations |
|---|
| 3476 | | - | as can be stated in the case of a merger or consolidation, stated in such |
|---|
| 3477 | | - | altered form as the circumstances of the case requirein the case of a |
|---|
| 3478 | | - | merger, such amendments or changes in the articles of incorporation of |
|---|
| 3479 | | - | the surviving corporation as are desired to be effected by the merger, |
|---|
| 3480 | | - | which may amend and restate the articles of incorporation of the |
|---|
| 3481 | | - | surviving corporation in its entirety, or, if no such amendments or |
|---|
| 3482 | | - | changes are desired, a statement that the articles of incorporation of |
|---|
| 3483 | | - | the surviving corporation shall be its articles of incorporation; |
|---|
| 3484 | | - | (4) in the case of a consolidation, that the articles of |
|---|
| 3485 | | - | incorporation of the resulting corporation shall be as set forth in an |
|---|
| 3486 | | - | attachment to the agreement; |
|---|
| 3487 | | - | (5) the manner, if any, of converting the memberships or |
|---|
| 3488 | | - | membership interests of each of the constituent corporations into |
|---|
| 3489 | | - | memberships or membership interests of the corporation surviving or |
|---|
| 3490 | | - | resulting from the merger or consolidation, or of cancelling some or all |
|---|
| 3491 | | - | of such memberships or membership interests, and, if any memberships |
|---|
| 3492 | | - | or membership interests of any of the constituent corporations are not |
|---|
| 3493 | | - | to remain outstanding, to be converted solely into memberships or |
|---|
| 3494 | | - | membership interests of the surviving or resulting corporation, or to be |
|---|
| 3495 | | - | cancelled, the cash, property, rights or securities of any other |
|---|
| 3496 | | - | corporation or entity that the holders of such memberships or |
|---|
| 3497 | | - | membership interests are to receive in exchange for, or upon |
|---|
| 3498 | | - | conversion of, such memberships or membership interests and such |
|---|
| 3499 | | - | cash, property, rights or securities of any other corporation or entity |
|---|
| 3500 | | - | may be in addition to or in lieu of memberships or membership H Sub for SENATE BILL No. 244—page 60 |
|---|
| 3501 | | - | interests of the surviving or resulting corporation; and |
|---|
| 3502 | | - | (5)(6) such other details or provisions as are deemed desirable, |
|---|
| 3503 | | - | including, but not limited to, a provision for the payment of cash in lieu |
|---|
| 3504 | | - | of the issuance or recognition of fractional shares, rights or other |
|---|
| 3505 | | - | securities of any other corporation or entity the shares, rights or other |
|---|
| 3506 | | - | securities of which are to be received in the merger or consolidation, or |
|---|
| 3507 | | - | for some other arrangement with respect thereto, consistent with K.S.A. |
|---|
| 3508 | | - | 17-6405, and amendments thereto. Any of the terms of the agreement |
|---|
| 3509 | | - | of merger or consolidation may be made dependent upon facts |
|---|
| 3510 | | - | ascertainable outside of such agreement, provided that if the manner in |
|---|
| 3511 | | - | which such facts shall operate upon the terms of the agreement is |
|---|
| 3512 | | - | clearly and expressly set forth in the agreement of merger or |
|---|
| 3513 | | - | consolidation. The term "Facts," as used in the preceding sentence, |
|---|
| 3514 | | - | includes, but is not limited to, the occurrence of any event, including a |
|---|
| 3515 | | - | determination or action by any person or body, including the |
|---|
| 3516 | | - | corporation. |
|---|
| 3517 | | - | (c) Subject to subsection (d), the agreement shall be submitted to |
|---|
| 3518 | | - | the members of each constituent corporation at an annual or special |
|---|
| 3519 | | - | meeting thereof for the purpose of acting on the agreement. Due notice |
|---|
| 3520 | | - | of the time, place and purpose of the meeting shall be mailed given to |
|---|
| 3521 | | - | each member of each such corporation who has the right to vote for the |
|---|
| 3522 | | - | election of the members of the governing body of the corporation and |
|---|
| 3523 | | - | to each other member who is entitled to vote on the merger under the |
|---|
| 3524 | | - | articles of incorporation or the bylaws of such corporation, at the |
|---|
| 3525 | | - | member's postal address as it appears on the records of the corporation, |
|---|
| 3526 | | - | at least 20 days prior to the date of the meeting. The notice shall |
|---|
| 3527 | | - | contain a copy of the agreement or a brief summary thereof. At the |
|---|
| 3528 | | - | meeting the agreement shall be considered and a vote, in person or by |
|---|
| 3529 | | - | proxy, taken for the adoption or rejection of the agreement. The |
|---|
| 3530 | | - | following vote shall be required for the adoption of the agreement: (1) |
|---|
| 3531 | | - | A majority of the members of each corporation entitled to vote for the |
|---|
| 3532 | | - | election of the members of the governing body of the corporation and |
|---|
| 3533 | | - | any other members entitled to vote on the merger under the articles of |
|---|
| 3534 | | - | incorporation or the bylaws of the corporation, except those |
|---|
| 3535 | | - | corporations that are the subject of paragraph (2); or (2) in the case of a |
|---|
| 3536 | | - | nonstock, nonprofit corporation, other than a nonprofit dental service |
|---|
| 3537 | | - | corporation organized and operated under the nonprofit dental service |
|---|
| 3538 | | - | corporation act, cited at K.S.A. 40-19a01 et seq., and amendments |
|---|
| 3539 | | - | thereto, a majority of the members of each corporation entitled to vote |
|---|
| 3540 | | - | for the election of the members of the governing body of the |
|---|
| 3541 | | - | corporation and any other members entitled to vote on the merger under |
|---|
| 3542 | | - | the articles of incorporation or the bylaws of the corporation voting at |
|---|
| 3543 | | - | the meeting. If the agreement is so adopted, that fact shall be certified |
|---|
| 3544 | | - | on the agreement by the officer of each such corporation performing |
|---|
| 3545 | | - | the duties ordinarily performed by the secretary or assistant secretary of |
|---|
| 3546 | | - | a corporation, except that such certification on the agreement shall not |
|---|
| 3547 | | - | be required if a certificate of merger or consolidation is filed in lieu of |
|---|
| 3548 | | - | filing the agreement. If the agreement shall be so is adopted and |
|---|
| 3549 | | - | certified by each constituent corporation in accordance with this |
|---|
| 3550 | | - | section, it shall be executed and filed, and shall become effective, in |
|---|
| 3551 | | - | accordance with K.S.A. 2022 Supp. 17-7908 through 17-7911, and |
|---|
| 3552 | | - | amendments thereto. The provisions set forth in the last sentence of |
|---|
| 3553 | | - | K.S.A. 17-6701(c), and amendments thereto, shall apply to a merger |
|---|
| 3554 | | - | under this section, and the reference therein in such sentence to |
|---|
| 3555 | | - | "stockholder" shall be deemed to include "member" hereunder as used |
|---|
| 3556 | | - | in this section. |
|---|
| 3557 | | - | (d) Notwithstanding subsection (b) or (c), if under the articles of |
|---|
| 3558 | | - | incorporation or the bylaws of any one or more of the constituent |
|---|
| 3559 | | - | corporations, there shall be no members who have the right to vote for H Sub for SENATE BILL No. 244—page 61 |
|---|
| 3560 | | - | the election of the members of the governing body of the corporation, |
|---|
| 3561 | | - | or for the merger, other than the members of the governing body |
|---|
| 3562 | | - | themselves, no further action by the governing body or the members of |
|---|
| 3563 | | - | such corporation shall be necessary if the resolution approving an |
|---|
| 3564 | | - | agreement of merger or consolidation has been adopted by a majority |
|---|
| 3565 | | - | of all the members of the governing body thereof, and that fact shall be |
|---|
| 3566 | | - | certified on the agreement in the same manner as is provided in the case |
|---|
| 3567 | | - | of the adoption of the agreement by the vote of the members of a |
|---|
| 3568 | | - | corporation, except that such certification on the agreement shall not be |
|---|
| 3569 | | - | required if a certificate of merger or consolidation is filed in lieu of |
|---|
| 3570 | | - | filing the agreement, and thereafter the same procedure shall be |
|---|
| 3571 | | - | followed to consummate the merger or consolidation. |
|---|
| 3572 | | - | (e) K.S.A. 17-6701(d), and amendments thereto, shall apply to a |
|---|
| 3573 | | - | merger under this section, except that references to the board of |
|---|
| 3574 | | - | directors, to stockholders, and to shares of a constituent corporation |
|---|
| 3575 | | - | shall be deemed to be references to the governing body of the |
|---|
| 3576 | | - | corporation, to members of the corporation, and to memberships or |
|---|
| 3577 | | - | membership interests, as applicable, respectively. |
|---|
| 3578 | | - | (f) K.S.A. 17-6701(e), and amendments thereto, shall apply to a |
|---|
| 3579 | | - | merger under this section. |
|---|
| 3580 | | - | (g) Nothing in this section shall be deemed to authorize the merger |
|---|
| 3581 | | - | of a charitable nonstock corporation into a nonstock corporation if such |
|---|
| 3582 | | - | charitable nonstock corporation would thereby have its charitable status |
|---|
| 3583 | | - | lost or impaired, but a nonstock corporation may be merged into a |
|---|
| 3584 | | - | charitable nonstock corporation which that shall continue as the |
|---|
| 3585 | | - | surviving corporation. |
|---|
| 3586 | | - | Sec. 33. K.S.A. 2022 Supp. 17-6706 is hereby amended to read as |
|---|
| 3587 | | - | follows: 17-6706. (a) Any one or more nonstock corporations of this |
|---|
| 3588 | | - | state may merge or consolidate with one or more other nonstock |
|---|
| 3589 | | - | corporations of any other state or states of the United States or of the |
|---|
| 3590 | | - | District of Columbia if the laws of such other state or states or of the |
|---|
| 3591 | | - | District of Columbia permit a corporation of such jurisdiction to merge |
|---|
| 3592 | | - | with a corporation of another jurisdiction foreign nonstock |
|---|
| 3593 | | - | corporations unless the laws of the jurisdiction or jurisdictions under |
|---|
| 3594 | | - | which such foreign nonstock corporation or corporations are |
|---|
| 3595 | | - | organized prohibit such merger or consolidation. The constituent |
|---|
| 3596 | | - | corporations may merge into a single surviving corporation, which may |
|---|
| 3597 | | - | be any one of the constituent corporations, or they may consolidate into |
|---|
| 3598 | | - | a new resulting nonstock corporation formed by the consolidation, |
|---|
| 3599 | | - | which may be a corporation of the state jurisdiction of incorporation |
|---|
| 3600 | | - | organization of any one of the constituent corporations, pursuant to an |
|---|
| 3601 | | - | agreement of merger or consolidation, as the case may be, complying |
|---|
| 3602 | | - | and approved in accordance with this section. In addition, any one or |
|---|
| 3603 | | - | more As used in this subsection, "foreign nonstock corporations |
|---|
| 3604 | | - | corporation" means a corporation organized under the laws of any |
|---|
| 3605 | | - | jurisdiction other than one of the United States may merge or |
|---|
| 3606 | | - | consolidate with one or more nonstock corporations of this state if the |
|---|
| 3607 | | - | surviving or resulting corporation will be a corporation of this state, |
|---|
| 3608 | | - | and if the laws under which the other corporation or corporations are |
|---|
| 3609 | | - | formed permit a corporation of such jurisdiction to merge with a |
|---|
| 3610 | | - | corporation of another jurisdiction this state. |
|---|
| 3611 | | - | (b) All the constituent corporations shall enter into an agreement |
|---|
| 3612 | | - | of merger or consolidation. The agreement shall state: |
|---|
| 3613 | | - | (1) The terms and conditions of the merger or consolidation; |
|---|
| 3614 | | - | (2) the mode of carrying the same into effect; |
|---|
| 3615 | | - | (3) in the case of a merger in which the surviving corporation is a |
|---|
| 3616 | | - | domestic corporation, such amendments or changes in the articles of |
|---|
| 3617 | | - | incorporation of the surviving corporation as are desired to be effected |
|---|
| 3618 | | - | by the merger, which may amend and restate the articles of H Sub for SENATE BILL No. 244—page 62 |
|---|
| 3619 | | - | incorporation of the surviving corporation in its entirety, or, if no such |
|---|
| 3620 | | - | amendments or changes are desired, a statement that the articles of |
|---|
| 3621 | | - | incorporation of the surviving corporation shall be its articles of |
|---|
| 3622 | | - | incorporation; |
|---|
| 3623 | | - | (4) in the case of a consolidation in which the resulting |
|---|
| 3624 | | - | corporation is a domestic corporation, that the articles of |
|---|
| 3625 | | - | incorporation of the resulting corporation shall be as is set forth in an |
|---|
| 3626 | | - | attachment to the agreement; |
|---|
| 3627 | | - | (5) the manner, if any, of converting the memberships or |
|---|
| 3628 | | - | membership interests of each of the constituent corporations into |
|---|
| 3629 | | - | memberships or membership interests of the corporation surviving or |
|---|
| 3630 | | - | resulting from such the merger or consolidation, or of cancelling some |
|---|
| 3631 | | - | or all of such memberships or membership interests, and, if any |
|---|
| 3632 | | - | memberships or membership interests of any of the constituent |
|---|
| 3633 | | - | corporations are not to remain outstanding, to be converted solely into |
|---|
| 3634 | | - | memberships or membership interests of the surviving or resulting |
|---|
| 3635 | | - | corporation or to be cancelled, the cash, property, rights or securities |
|---|
| 3636 | | - | of any other corporation or entity that the holders of such memberships |
|---|
| 3637 | | - | or membership interests are to receive in exchange for, or upon |
|---|
| 3638 | | - | conversion of, such memberships or membership interests and such |
|---|
| 3639 | | - | cash, property, rights or securities of any other corporation or entity |
|---|
| 3640 | | - | may be in addition to or in lieu of memberships or membership |
|---|
| 3641 | | - | interests of the surviving or resulting corporation; |
|---|
| 3642 | | - | (4)(6) such other details and or provisions as shall be are deemed |
|---|
| 3643 | | - | desirable, including, without limiting the generality of this subsection, |
|---|
| 3644 | | - | a provision for the payment of cash in lieu of the issuance or |
|---|
| 3645 | | - | recognition of fractional shares, rights or other securities of any other |
|---|
| 3646 | | - | corporation or entity the shares, rights or other securities of which are |
|---|
| 3647 | | - | to be received in the merger or consolidation, or for some other |
|---|
| 3648 | | - | arrangement with respect thereto, consistent with K.S.A. 17-6405, and |
|---|
| 3649 | | - | amendments thereto; and |
|---|
| 3650 | | - | (5)(7) such other provisions or facts as shall then be required to be |
|---|
| 3651 | | - | stated in articles of incorporation set forth in an agreement of merger |
|---|
| 3652 | | - | or consolidation, including any provision for amendment of the articles |
|---|
| 3653 | | - | of incorporation, or equivalent document, of a surviving foreign |
|---|
| 3654 | | - | nonstock corporation by the laws of the state which are stated in the |
|---|
| 3655 | | - | agreement to be the laws that shall govern the surviving or resulting |
|---|
| 3656 | | - | corporation and that can be stated in the case of a merger or |
|---|
| 3657 | | - | consolidation each jurisdiction under which any of the foreign |
|---|
| 3658 | | - | nonstock corporations are organized. Any of the terms of the |
|---|
| 3659 | | - | agreement of merger or consolidation may be made dependent upon |
|---|
| 3660 | | - | facts ascertainable outside of such agreement, if the manner in which |
|---|
| 3661 | | - | such facts shall operate upon the terms of the agreement is clearly and |
|---|
| 3662 | | - | expressly set forth in the agreement of merger or consolidation. The |
|---|
| 3663 | | - | term "Facts," as used in the preceding sentence, includes, but is not |
|---|
| 3664 | | - | limited to, the occurrence of any event, including a determination or |
|---|
| 3665 | | - | action by any person or body, including the corporation. |
|---|
| 3666 | | - | (c) The agreement shall be adopted, approved, certified and |
|---|
| 3667 | | - | executed by each of the constituent corporations in accordance with the |
|---|
| 3668 | | - | laws under which it is formed organized and, in the case of a Kansas |
|---|
| 3669 | | - | domestic corporation, in the same manner as is provided in K.S.A. 17- |
|---|
| 3670 | | - | 6705, and amendments thereto. The agreement shall be filed and shall |
|---|
| 3671 | | - | become effective for all purposes of the laws of this state when and as |
|---|
| 3672 | | - | provided in K.S.A. 17-6705, and amendments thereto, with respect to |
|---|
| 3673 | | - | the merger of nonstock corporations of this state. Insofar as they may |
|---|
| 3674 | | - | be applicable, the provisions set forth in the last sentence of K.S.A. 17- |
|---|
| 3675 | | - | 6702(c), and amendments thereto, shall apply to a merger under this |
|---|
| 3676 | | - | section, and the reference therein in such sentence to "stockholder" |
|---|
| 3677 | | - | shall be deemed to include "member" hereunder as used in this section. H Sub for SENATE BILL No. 244—page 63 |
|---|
| 3678 | | - | (d) If the corporation surviving or resulting from the merger or |
|---|
| 3679 | | - | consolidation is to be governed by the laws of any state other than this |
|---|
| 3680 | | - | state a foreign nonstock corporation, it shall agree that it may be served |
|---|
| 3681 | | - | with process in this state in any proceeding for enforcement of any |
|---|
| 3682 | | - | obligation of any constituent domestic corporation of this state, as well |
|---|
| 3683 | | - | as for enforcement of any obligation of the surviving or resulting |
|---|
| 3684 | | - | corporation arising from the merger or consolidation and shall |
|---|
| 3685 | | - | irrevocably appoint the secretary of state as its agent to accept service |
|---|
| 3686 | | - | of process in any suit or other proceedings and shall specify the postal |
|---|
| 3687 | | - | address to which a copy of such process shall be mailed by the |
|---|
| 3688 | | - | secretary of state. Process may be served upon the secretary of state |
|---|
| 3689 | | - | under this subsection by means of electronic transmission but only as |
|---|
| 3690 | | - | prescribed by the secretary of state. The secretary of state is authorized |
|---|
| 3691 | | - | to issue such rules and regulations with respect to such service as the |
|---|
| 3692 | | - | secretary of state deems necessary or appropriate. In the event of such |
|---|
| 3693 | | - | service upon the secretary of state in accordance with this subsection, |
|---|
| 3694 | | - | the secretary of state shall forthwith immediately notify such surviving |
|---|
| 3695 | | - | or resulting corporation thereof by letter, directed to such corporation at |
|---|
| 3696 | | - | its address so specified, unless such surviving or resulting corporation |
|---|
| 3697 | | - | shall have designated in writing to the secretary of state a different |
|---|
| 3698 | | - | address for such purpose, in which case it shall be mailed to the last |
|---|
| 3699 | | - | address so designated. Such letter shall be sent by a mail or courier |
|---|
| 3700 | | - | service that includes a record of mailing or deposit with the courier and |
|---|
| 3701 | | - | a record of delivery evidenced by the signature of the recipient. Such |
|---|
| 3702 | | - | letter shall enclose a copy of the process and any other papers served |
|---|
| 3703 | | - | upon the secretary of state. It shall be the duty of the plaintiff in the |
|---|
| 3704 | | - | event of such service to serve process and any other papers in |
|---|
| 3705 | | - | duplicate, to notify the secretary of state that service is being made |
|---|
| 3706 | | - | pursuant to this subsection, and to pay the secretary of state the sum of |
|---|
| 3707 | | - | $40 $50 for the use of the state, which. Such sum and any |
|---|
| 3708 | | - | administrative fees shall be taxed as a part of the costs in the |
|---|
| 3709 | | - | proceeding if the plaintiff shall prevail therein prevails. The secretary |
|---|
| 3710 | | - | of state shall maintain a record of any such service in a manner deemed |
|---|
| 3711 | | - | appropriate by the secretary. The secretary of state shall not be required |
|---|
| 3712 | | - | to retain such information for a period longer than five years from |
|---|
| 3713 | | - | receipt of the service of process. |
|---|
| 3714 | | - | (e) K.S.A. 17-6701(e), and amendments thereto, shall apply to a |
|---|
| 3715 | | - | merger under this section, if the corporation surviving the merger is a |
|---|
| 3716 | | - | domestic corporation of this state. |
|---|
| 3717 | | - | (f) K.S.A. 17-6701(d), and amendments thereto, shall apply to a |
|---|
| 3718 | | - | merger under this section, except that references to the board of |
|---|
| 3719 | | - | directors, to stockholders, and to shares of a constituent corporation |
|---|
| 3720 | | - | shall be deemed to be references to the governing body of the |
|---|
| 3721 | | - | corporation, to members of the corporation, and to memberships or |
|---|
| 3722 | | - | membership interests, as applicable, respectively. |
|---|
| 3723 | | - | (g) Nothing in this section shall be deemed to authorize the merger |
|---|
| 3724 | | - | of a charitable nonstock corporation into a nonstock corporation, if the |
|---|
| 3725 | | - | charitable status of such charitable nonstock corporation would thereby |
|---|
| 3726 | | - | be lost or impaired, but a nonstock corporation may be merged into a |
|---|
| 3727 | | - | charitable nonstock corporation which that shall continue as the |
|---|
| 3728 | | - | surviving corporation. |
|---|
| 3729 | | - | Sec. 34. K.S.A. 2022 Supp. 17-6707 is hereby amended to read as |
|---|
| 3730 | | - | follows: 17-6707. (a) Any one or more nonstock corporations of this |
|---|
| 3731 | | - | state, whether or not organized for profit, may merge or consolidate |
|---|
| 3732 | | - | with one or more stock corporations of this state, whether or not |
|---|
| 3733 | | - | organized for profit. The constituent corporations may merge into a |
|---|
| 3734 | | - | single surviving corporation, which may be any one of the constituent |
|---|
| 3735 | | - | corporations, or they may consolidate into a new resulting corporation |
|---|
| 3736 | | - | formed by the consolidation, pursuant to an agreement of merger or H Sub for SENATE BILL No. 244—page 64 |
|---|
| 3737 | | - | consolidation, as the case may be, complying and approved in |
|---|
| 3738 | | - | accordance with this section. The surviving constituent corporation or |
|---|
| 3739 | | - | the new resulting corporation may be organized for profit or not |
|---|
| 3740 | | - | organized for profit and may be a stock corporation or a nonstock |
|---|
| 3741 | | - | corporation. |
|---|
| 3742 | | - | (b) The board of directors of each stock corporation which that |
|---|
| 3743 | | - | desires to merge or consolidate and the governing body of each |
|---|
| 3744 | | - | nonstock corporation which that desires to merge or consolidate shall |
|---|
| 3745 | | - | adopt a resolution approving an agreement of merger or consolidation. |
|---|
| 3746 | | - | The agreement shall state: |
|---|
| 3747 | | - | (1) The terms and conditions of the merger or consolidation; |
|---|
| 3748 | | - | (2) the mode of carrying the same into effect; |
|---|
| 3749 | | - | (3) such other provisions or facts required or permitted by this |
|---|
| 3750 | | - | code to be stated in articles of incorporation as can be stated in the case |
|---|
| 3751 | | - | of a merger or consolidation, stated in such altered form as the |
|---|
| 3752 | | - | circumstances of the case requirein the case of a merger, such |
|---|
| 3753 | | - | amendments or changes in the articles of incorporation of the |
|---|
| 3754 | | - | surviving corporation as are desired to be effected by the merger, |
|---|
| 3755 | | - | which may amend and restate the articles of incorporation of the |
|---|
| 3756 | | - | surviving corporation in its entirety, or, if no such amendments or |
|---|
| 3757 | | - | changes are desired, a statement that the articles of incorporation of |
|---|
| 3758 | | - | the surviving corporation shall be its articles of incorporation; |
|---|
| 3759 | | - | (4) in the case of a consolidation, that the articles of |
|---|
| 3760 | | - | incorporation of the resulting corporation shall be as is set forth in an |
|---|
| 3761 | | - | attachment to the agreement; |
|---|
| 3762 | | - | (5) the manner, if any, of converting the shares of stock of a stock |
|---|
| 3763 | | - | corporation and the memberships or membership interests of a |
|---|
| 3764 | | - | nonstock corporation into shares or other securities of a stock |
|---|
| 3765 | | - | corporation or memberships or membership interests of a nonstock |
|---|
| 3766 | | - | corporation surviving or resulting from such merger or consolidation or |
|---|
| 3767 | | - | of cancelling some or all of such shares or memberships or membership |
|---|
| 3768 | | - | interests, and, if any shares of any such stock corporation or |
|---|
| 3769 | | - | memberships or membership interests of any such nonstock corporation |
|---|
| 3770 | | - | are not to remain outstanding, to be converted solely into shares or |
|---|
| 3771 | | - | other securities of the stock corporation or memberships or membership |
|---|
| 3772 | | - | interests of the nonstock corporation surviving or resulting from such |
|---|
| 3773 | | - | merger or consolidation or to be cancelled, the cash, property, rights or |
|---|
| 3774 | | - | securities of any other corporation or entity which that the holders of |
|---|
| 3775 | | - | shares of any such stock corporation or memberships or membership |
|---|
| 3776 | | - | interests of any such nonstock corporation are to receive in exchange |
|---|
| 3777 | | - | for, or upon conversion of such shares or memberships or membership |
|---|
| 3778 | | - | interests, and the surrender of any certificates evidencing them, which |
|---|
| 3779 | | - | and such cash, property, rights or securities of any other corporation or |
|---|
| 3780 | | - | entity may be in addition to or in lieu of shares or other securities of |
|---|
| 3781 | | - | any stock corporation or memberships or membership interests of any |
|---|
| 3782 | | - | nonstock corporation surviving or resulting from such merger or |
|---|
| 3783 | | - | consolidation; and |
|---|
| 3784 | | - | (5)(6) such other details or provisions as are deemed desirable, |
|---|
| 3785 | | - | including, without limiting the generality of this subsection, a provision |
|---|
| 3786 | | - | for the payment of cash in lieu of the issuance or recognition of |
|---|
| 3787 | | - | fractional shares, rights or other securities of the surviving or resulting |
|---|
| 3788 | | - | corporation or of any other corporation or entity the shares, rights or |
|---|
| 3789 | | - | other securities of which are to be received in the merger or |
|---|
| 3790 | | - | consolidation, or for some other arrangement with respect thereto, |
|---|
| 3791 | | - | consistent with K.S.A. 17-6405, and amendments thereto. |
|---|
| 3792 | | - | In such merger or consolidation, the memberships or membership |
|---|
| 3793 | | - | interests of a constituent nonstock corporation may be treated in |
|---|
| 3794 | | - | various ways so as to convert such memberships or membership |
|---|
| 3795 | | - | interests into interests of value, other than shares of stock, in the H Sub for SENATE BILL No. 244—page 65 |
|---|
| 3796 | | - | surviving or resulting stock corporation or into shares of stock in the |
|---|
| 3797 | | - | surviving or resulting stock corporation, voting or nonvoting, or into |
|---|
| 3798 | | - | creditor interests or any other interests of value equivalent to their |
|---|
| 3799 | | - | memberships or membership interests in their nonstock corporation. |
|---|
| 3800 | | - | The voting rights of members of a constituent nonstock corporation |
|---|
| 3801 | | - | need not be considered an element of value in measuring the reasonable |
|---|
| 3802 | | - | equivalence of the value of the interests received in the surviving or |
|---|
| 3803 | | - | resulting stock corporation by members of a constituent nonstock |
|---|
| 3804 | | - | corporation, nor need the voting rights of shares of stock in a |
|---|
| 3805 | | - | constituent stock corporation be considered as an element of value in |
|---|
| 3806 | | - | measuring the reasonable equivalence of the value of the interests in the |
|---|
| 3807 | | - | surviving or resulting nonstock corporation received by stockholders of |
|---|
| 3808 | | - | a constituent stock corporation, and the voting or nonvoting shares of a |
|---|
| 3809 | | - | stock corporation may be converted into any type of membership or |
|---|
| 3810 | | - | membership interest, however designated, creditor interests or |
|---|
| 3811 | | - | participating interests, in the nonstock corporation surviving or |
|---|
| 3812 | | - | resulting from such merger or consolidation of a stock corporation and |
|---|
| 3813 | | - | a nonstock corporation. Any of the terms of the agreement of merger or |
|---|
| 3814 | | - | consolidation may be made dependent upon facts ascertainable outside |
|---|
| 3815 | | - | of such agreement, provided that if the manner in which such facts shall |
|---|
| 3816 | | - | operate upon the terms of the agreement is clearly and expressly set |
|---|
| 3817 | | - | forth in the agreement of merger or consolidation. The term "Facts," as |
|---|
| 3818 | | - | used in the preceding sentence, includes, but is not limited to, the |
|---|
| 3819 | | - | occurrence of any event, including a determination or action by any |
|---|
| 3820 | | - | person or body, including the corporation. |
|---|
| 3821 | | - | (c) The agreement required by subsection (b), in the case of each |
|---|
| 3822 | | - | constituent stock corporation, shall be adopted, approved, certified and |
|---|
| 3823 | | - | executed by each constituent corporation in the same manner as is |
|---|
| 3824 | | - | provided in K.S.A. 17-6701, and amendments thereto, and, in the case |
|---|
| 3825 | | - | of each constituent nonstock corporation, shall be adopted, approved, |
|---|
| 3826 | | - | certified and executed by each of such constituent corporations in the |
|---|
| 3827 | | - | same manner as is provided in K.S.A. 17-6705, and amendments |
|---|
| 3828 | | - | thereto. The agreement shall be filed and shall become effective for all |
|---|
| 3829 | | - | purposes of the laws of this state when and as provided in K.S.A. 17- |
|---|
| 3830 | | - | 6701, and amendments thereto, with respect to the merger of stock |
|---|
| 3831 | | - | corporations of this state. Insofar as they may be applicable, the |
|---|
| 3832 | | - | provisions set forth in the last sentence of K.S.A. 17-6701(c), and |
|---|
| 3833 | | - | amendments thereto, shall apply to a merger under this section, and the |
|---|
| 3834 | | - | reference therein in such sentence to "stockholder" shall be deemed to |
|---|
| 3835 | | - | include "member" hereunder as used in this section. |
|---|
| 3836 | | - | (d) K.S.A. 17-6701(e), and amendments thereto, shall apply to a |
|---|
| 3837 | | - | merger under this section, if the surviving corporation is a corporation |
|---|
| 3838 | | - | of this state, and K.S.A. 17-6701(f), and amendments thereto, shall |
|---|
| 3839 | | - | apply to any constituent stock corporation participating in a merger |
|---|
| 3840 | | - | under this section. |
|---|
| 3841 | | - | (e) K.S.A. 17-6701(d), and amendments thereto, shall apply to a |
|---|
| 3842 | | - | merger under this section, except that, for purposes of a constituent |
|---|
| 3843 | | - | nonstock corporation, references to the board of directors, to |
|---|
| 3844 | | - | stockholders, and to shares of a constituent corporation shall be deemed |
|---|
| 3845 | | - | to be references to the governing body of the corporation, to members |
|---|
| 3846 | | - | of the corporation, and to memberships or membership interests, as |
|---|
| 3847 | | - | applicable, respectively. |
|---|
| 3848 | | - | (f) Nothing in this section shall be deemed to authorize the merger |
|---|
| 3849 | | - | of a charitable nonstock corporation into a stock corporation, if the |
|---|
| 3850 | | - | charitable status of such nonstock corporation would thereby be lost or |
|---|
| 3851 | | - | impaired, but a stock corporation may be merged into a charitable |
|---|
| 3852 | | - | nonstock corporation which that shall continue as the surviving |
|---|
| 3853 | | - | corporation. |
|---|
| 3854 | | - | Sec. 35. K.S.A. 2022 Supp. 17-6708 is hereby amended to read as H Sub for SENATE BILL No. 244—page 66 |
|---|
| 3855 | | - | follows: 17-6708. (a) Any one or more corporations of this state, |
|---|
| 3856 | | - | whether stock or nonstock corporations and whether or not organized |
|---|
| 3857 | | - | for profit, may merge or consolidate with one or more other |
|---|
| 3858 | | - | corporations of any other state or states of the United States or of the |
|---|
| 3859 | | - | District of Columbia, whether stock or nonstock corporations and |
|---|
| 3860 | | - | whether or not organized for profit, if the laws under which the other |
|---|
| 3861 | | - | corporation or corporations are formed shall permit such a corporation |
|---|
| 3862 | | - | of such jurisdiction to merge with a corporation of another jurisdiction |
|---|
| 3863 | | - | foreign corporations unless the laws of the jurisdiction or jurisdictions |
|---|
| 3864 | | - | under which such foreign corporation or corporations are organized |
|---|
| 3865 | | - | prohibit such merger or consolidation. The constituent corporations |
|---|
| 3866 | | - | may merge into a single surviving corporation, which may be any one |
|---|
| 3867 | | - | of the constituent corporations, or they may consolidate into a new |
|---|
| 3868 | | - | resulting corporation formed by the consolidation, which may be a |
|---|
| 3869 | | - | corporation of the place jurisdiction of incorporation organization of |
|---|
| 3870 | | - | any one of the constituent corporations, pursuant to an agreement of |
|---|
| 3871 | | - | merger or consolidation, as the case may be, complying and approved |
|---|
| 3872 | | - | in accordance with this section. The surviving or new resulting |
|---|
| 3873 | | - | corporation may be either a domestic or foreign stock corporation or a |
|---|
| 3874 | | - | domestic or foreign nonstock corporation, as shall be specified in the |
|---|
| 3875 | | - | agreement of merger or consolidation required by subsection (b). For |
|---|
| 3876 | | - | purposes of this section, "foreign corporation" includes a stock or |
|---|
| 3877 | | - | nonstock corporation organized under the laws of any jurisdiction |
|---|
| 3878 | | - | other than this state. |
|---|
| 3879 | | - | (b) The method and procedure to be followed by the constituent |
|---|
| 3880 | | - | corporations so merging or consolidating shall be as prescribed in |
|---|
| 3881 | | - | K.S.A. 17-6707, and amendments thereto, in the case of Kansas |
|---|
| 3882 | | - | domestic corporations. The agreement of merger or consolidation shall |
|---|
| 3883 | | - | be as provided in K.S.A. 17-6707, and amendments thereto, and also set |
|---|
| 3884 | | - | forth such other matters or provisions or facts as shall then be required |
|---|
| 3885 | | - | to be set forth in an agreement of merger or consolidation, including |
|---|
| 3886 | | - | any provision for amendment of the articles of incorporation, or |
|---|
| 3887 | | - | equivalent document, of a surviving foreign corporation, by the laws of |
|---|
| 3888 | | - | the state which jurisdiction or jurisdictions that are stated in the |
|---|
| 3889 | | - | agreement to be the laws under which shall govern the surviving or |
|---|
| 3890 | | - | resulting the foreign corporation and that can be stated in the case of a |
|---|
| 3891 | | - | merger or consolidation or corporations are organized. The agreement, |
|---|
| 3892 | | - | in the case of foreign corporations, shall be adopted, approved, certified |
|---|
| 3893 | | - | and executed by each of the constituent foreign corporations in |
|---|
| 3894 | | - | accordance with the laws under which each is formed organized. |
|---|
| 3895 | | - | (c) The requirements of K.S.A. 17-6702(d), and amendments |
|---|
| 3896 | | - | thereto, as to the appointment of the secretary of state to receive |
|---|
| 3897 | | - | process and the manner of serving the same in the event the surviving |
|---|
| 3898 | | - | or new resulting corporation is to be governed by the laws of any other |
|---|
| 3899 | | - | state a foreign corporation shall also apply to mergers or consolidations |
|---|
| 3900 | | - | effected under this section and such appointment, if any, shall be |
|---|
| 3901 | | - | included in the certificate of merger or consolidation, if any, filed |
|---|
| 3902 | | - | pursuant to subsection (b). K.S.A. 17-6701(e), and amendments |
|---|
| 3903 | | - | thereto, shall apply to mergers effected under this section if the |
|---|
| 3904 | | - | surviving corporation is a domestic corporation of this state;. K.S.A. |
|---|
| 3905 | | - | 17-6701(d), and amendments thereto, shall apply to any constituent |
|---|
| 3906 | | - | corporation participating in a merger or consolidation under this |
|---|
| 3907 | | - | section, except that for purposes of a constituent nonstock corporation, |
|---|
| 3908 | | - | references to the board of directors, to stockholders, and to shares shall |
|---|
| 3909 | | - | be deemed to be references to the governing body of the corporation, to |
|---|
| 3910 | | - | members of the corporation, and to memberships or membership |
|---|
| 3911 | | - | interests of the corporation, as applicable, respectively; and. K.S.A. 17- |
|---|
| 3912 | | - | 6701(f), and amendments thereto, shall apply to any constituent stock |
|---|
| 3913 | | - | domestic corporation participating in a merger under this section. H Sub for SENATE BILL No. 244—page 67 |
|---|
| 3914 | | - | (d) Nothing in this section shall be deemed to authorize the merger |
|---|
| 3915 | | - | of a charitable nonstock corporation into a stock corporation, if the |
|---|
| 3916 | | - | charitable status of such nonstock corporation would thereby be lost or |
|---|
| 3917 | | - | impaired; but a stock corporation may be merged into a charitable |
|---|
| 3918 | | - | nonstock corporation which that shall continue as the surviving |
|---|
| 3919 | | - | corporation. |
|---|
| 3920 | | - | Sec. 36. K.S.A. 2022 Supp. 17-6712 is hereby amended to read as |
|---|
| 3921 | | - | follows: 17-6712. (a) Any stockholder of a domestic corporation of this |
|---|
| 3922 | | - | state who holds shares of stock on the date of the making of a demand |
|---|
| 3923 | | - | pursuant to subsection (d) with respect to such shares, who |
|---|
| 3924 | | - | continuously holds such shares through the effective date of the merger |
|---|
| 3925 | | - | or consolidation, who has otherwise complied with subsection (d) and |
|---|
| 3926 | | - | who has neither voted in favor of the merger or consolidation nor |
|---|
| 3927 | | - | consented thereto in writing pursuant to K.S.A. 17-6518, and |
|---|
| 3928 | | - | amendments thereto, shall be entitled to an appraisal by the district |
|---|
| 3929 | | - | court of the fair value of the stockholder's shares of stock under the |
|---|
| 3930 | | - | circumstances described in subsections (b) and (c). As used in this |
|---|
| 3931 | | - | section, the word: "Stockholder" means a holder of record of stock in a |
|---|
| 3932 | | - | corporation; the words "stock" and "share" mean and include what is |
|---|
| 3933 | | - | ordinarily meant by those words; and the words "depository receipt" |
|---|
| 3934 | | - | mean means a receipt or other instrument issued by a depository |
|---|
| 3935 | | - | representing an interest in one or more shares, or fractions thereof, |
|---|
| 3936 | | - | solely of stock of a corporation, which stock that is deposited with the |
|---|
| 3937 | | - | depository. |
|---|
| 3938 | | - | (b) Appraisal rights shall be available for the shares of any class or |
|---|
| 3939 | | - | series of stock of a constituent corporation in a merger or consolidation |
|---|
| 3940 | | - | to be effected pursuant to K.S.A. 17-6701, and amendments thereto, |
|---|
| 3941 | | - | other than a merger effected pursuant to K.S.A. 17-6701(g), and |
|---|
| 3942 | | - | amendments thereto, and, subject to subsection (b)(3), K.S.A. 17- |
|---|
| 3943 | | - | 7601(h), 17-6702, 17-6705, 17-6706, 17-6707 and 17-6708, and |
|---|
| 3944 | | - | amendments thereto: |
|---|
| 3945 | | - | (1) Except as expressly provided in K.S.A. 2022 Supp. 17-72a03, |
|---|
| 3946 | | - | and amendments thereto, that no appraisal rights under this section |
|---|
| 3947 | | - | shall be available for the shares of any class or series of stock, which |
|---|
| 3948 | | - | stock, or depository receipts in respect thereof, at the record date fixed |
|---|
| 3949 | | - | to determine the stockholders entitled to receive notice of the meeting |
|---|
| 3950 | | - | of stockholders to act upon the agreement of merger or consolidation, |
|---|
| 3951 | | - | or in the case of a merger pursuant to K.S.A. 17-7601(h), and |
|---|
| 3952 | | - | amendments thereto, as of immediately prior to the execution of the |
|---|
| 3953 | | - | agreement of merger, were either: |
|---|
| 3954 | | - | (A) Listed on a national securities exchange; or |
|---|
| 3955 | | - | (B) held of record by more than 2,000 holders, except that no |
|---|
| 3956 | | - | appraisal rights shall be available for any shares of stock of the |
|---|
| 3957 | | - | constituent corporation surviving a merger if the merger did not require |
|---|
| 3958 | | - | for its approval the vote of the stockholders of the surviving |
|---|
| 3959 | | - | corporation as provided in K.S.A. 17-6701(f), and amendments thereto. |
|---|
| 3960 | | - | (2) Notwithstanding subsection (b)(1), appraisal rights under this |
|---|
| 3961 | | - | section shall be available for the shares of any class or series of stock of |
|---|
| 3962 | | - | a constituent corporation if the holders thereof are required by the terms |
|---|
| 3963 | | - | of an agreement of merger or consolidation pursuant to K.S.A. 17- |
|---|
| 3964 | | - | 6701, 17-6702, 17-6705, 17-6706, 17-6707 and 17-6708, and |
|---|
| 3965 | | - | amendments thereto, to accept for such stock anything except: |
|---|
| 3966 | | - | (A) Shares of stock of the corporation surviving or resulting from |
|---|
| 3967 | | - | such merger or consolidation, or depository receipts in respect thereof; |
|---|
| 3968 | | - | (B) shares of stock of any other corporation, or depository receipts |
|---|
| 3969 | | - | in respect thereof, which shares of stock, or depository receipts in |
|---|
| 3970 | | - | respect thereof, or depository receipts at the effective date of the merger |
|---|
| 3971 | | - | or consolidation will be either listed on a national securities exchange |
|---|
| 3972 | | - | or held of record by more than 2,000 holders; H Sub for SENATE BILL No. 244—page 68 |
|---|
| 3973 | | - | (C) cash in lieu of fractional shares or fractional depository |
|---|
| 3974 | | - | receipts described in subparagraphs (A) and (B); or |
|---|
| 3975 | | - | (D) any combination of the shares of stock, depository receipts |
|---|
| 3976 | | - | and cash in lieu of fractional shares or fractional depository receipts |
|---|
| 3977 | | - | described in subparagraphs (A), (B) and (C). |
|---|
| 3978 | | - | (3) In the event all of the stock of a subsidiary Kansas domestic |
|---|
| 3979 | | - | corporation party to a merger effected under K.S.A. 17-6701(h) or 17- |
|---|
| 3980 | | - | 6703, and amendments thereto, is not owned by the parent immediately |
|---|
| 3981 | | - | prior to the merger, appraisal rights shall be available for the shares of |
|---|
| 3982 | | - | the subsidiary Kansas domestic corporation. |
|---|
| 3983 | | - | (4) This paragraph shall apply only with respect to a merger or |
|---|
| 3984 | | - | consolidation consummated pursuant to an agreement entered into or |
|---|
| 3985 | | - | resolutions of the board of directors adopted, as applicable, before July |
|---|
| 3986 | | - | 1, 2023. In the event of an amendment to a corporation's articles of |
|---|
| 3987 | | - | incorporation contemplated by K.S.A. 2022 Supp. 17-72a03, and |
|---|
| 3988 | | - | amendments thereto, appraisal rights shall be available as contemplated |
|---|
| 3989 | | - | by K.S.A. 2022 Supp. 17-72a03, and amendments thereto, and the |
|---|
| 3990 | | - | procedures of this section, including those set forth in subsections (d) |
|---|
| 3991 | | - | and (e), shall apply as nearly as practicable, with the word |
|---|
| 3992 | | - | "amendment" substituted for the words "merger or consolidation," and |
|---|
| 3993 | | - | the word "corporation" substituted for the words "constituent |
|---|
| 3994 | | - | corporation" or "surviving or resulting corporation." |
|---|
| 3995 | | - | (c) Any corporation may provide in its articles of incorporation |
|---|
| 3996 | | - | that appraisal rights under this section shall be available for the shares |
|---|
| 3997 | | - | of any class or series of its stock as a result of an amendment to its |
|---|
| 3998 | | - | articles of incorporation, any merger or consolidation in which the |
|---|
| 3999 | | - | corporation is a constituent corporation or the sale of all or substantially |
|---|
| 4000 | | - | all of the assets of the corporation. If the articles of incorporation |
|---|
| 4001 | | - | contain such a provision, the procedures provisions of this section, |
|---|
| 4002 | | - | including those set forth in subsections (d) and, (e), and (g) shall apply |
|---|
| 4003 | | - | as nearly as is practicable. |
|---|
| 4004 | | - | (d) Appraisal rights shall be perfected as follows: |
|---|
| 4005 | | - | (1) If a proposed merger or consolidation for which appraisal |
|---|
| 4006 | | - | rights are provided under this section is to be submitted for approval at |
|---|
| 4007 | | - | a meeting of stockholders, the corporation, not less than 20 days prior |
|---|
| 4008 | | - | to the meeting, shall notify each of its stockholders who was such on |
|---|
| 4009 | | - | the record date for notice of such meeting, or such members who |
|---|
| 4010 | | - | received notice in accordance with K.S.A. 17-6705, and amendments |
|---|
| 4011 | | - | thereto, with respect to shares for which appraisal rights are available |
|---|
| 4012 | | - | pursuant to subsection (b) or (c) that appraisal rights are available for |
|---|
| 4013 | | - | any or all of the shares of the constituent corporations, and shall include |
|---|
| 4014 | | - | in such notice a copy of this section and, if one of the constituent |
|---|
| 4015 | | - | corporations is a nonstock corporation, a copy of K.S.A. 2022 Supp. |
|---|
| 4016 | | - | 17-6014, and amendments thereto. Each stockholder electing to |
|---|
| 4017 | | - | demand the appraisal of such stockholder's shares shall deliver to the |
|---|
| 4018 | | - | corporation, before the taking of the vote on the merger or |
|---|
| 4019 | | - | consolidation, a written demand for appraisal of such stockholder's |
|---|
| 4020 | | - | shares. A demand may be delivered to the corporation by electronic |
|---|
| 4021 | | - | transmission if directed to an information processing system, if any, |
|---|
| 4022 | | - | expressly designated for that purpose in such notice. Such demand will |
|---|
| 4023 | | - | be sufficient if it reasonably informs the corporation of the identity of |
|---|
| 4024 | | - | the stockholder and that the stockholder intends thereby to demand the |
|---|
| 4025 | | - | appraisal of such stockholder's shares. A proxy or vote against the |
|---|
| 4026 | | - | merger or consolidation shall not constitute such a demand. A |
|---|
| 4027 | | - | stockholder electing to take such action must do so by a separate |
|---|
| 4028 | | - | written demand as herein provided in this subsection. Within 10 days |
|---|
| 4029 | | - | after the effective date of such merger or consolidation, the surviving or |
|---|
| 4030 | | - | resulting corporation shall notify each stockholder of each constituent |
|---|
| 4031 | | - | corporation who has complied with this subsection and has not voted in H Sub for SENATE BILL No. 244—page 69 |
|---|
| 4032 | | - | favor of or consented to the merger or consolidation of the date that the |
|---|
| 4033 | | - | merger or consolidation has become effective; or |
|---|
| 4034 | | - | (2) if the merger or consolidation was approved pursuant to |
|---|
| 4035 | | - | K.S.A. 17-6518, 17-6701(h) or 17-6703, and amendments thereto, then, |
|---|
| 4036 | | - | either a constituent corporation before the effective date of the merger |
|---|
| 4037 | | - | or consolidation or the surviving or resulting corporation within 10 |
|---|
| 4038 | | - | days thereafter shall notify each of the holders of any class or series of |
|---|
| 4039 | | - | stock of such constituent corporation who are entitled to appraisal |
|---|
| 4040 | | - | rights of the approval of the merger or consolidation and that appraisal |
|---|
| 4041 | | - | rights are available for any or all shares of such class or series of stock |
|---|
| 4042 | | - | of such constituent corporation, and shall include in such notice a copy |
|---|
| 4043 | | - | of this section and, if one of the constituent corporations is a nonstock |
|---|
| 4044 | | - | corporation, a copy of K.S.A. 2022 Supp. 17-6014, and amendments |
|---|
| 4045 | | - | thereto. Such notice may, and, if given on or after the effective date of |
|---|
| 4046 | | - | the merger or consolidation, shall, also notify such stockholders of the |
|---|
| 4047 | | - | effective date of the merger or consolidation. Any stockholder entitled |
|---|
| 4048 | | - | to appraisal rights may, within 20 days after the date of mailing of |
|---|
| 4049 | | - | giving such notice or, in the case of a merger approved pursuant to |
|---|
| 4050 | | - | K.S.A. 17-6701(h), and amendments thereto, within the later of the |
|---|
| 4051 | | - | consummation of the tender or exchange offer contemplated by K.S.A. |
|---|
| 4052 | | - | 17-6701(h), and amendments thereto, and 20 days after the date of |
|---|
| 4053 | | - | mailing of giving such notice, demand in writing from the surviving or |
|---|
| 4054 | | - | resulting corporation the appraisal of such holder's shares. A demand |
|---|
| 4055 | | - | may be delivered to the corporation by electronic transmission if |
|---|
| 4056 | | - | directed to an information processing system, if any, designated for that |
|---|
| 4057 | | - | purpose in such notice. Such demand will be sufficient if it reasonably |
|---|
| 4058 | | - | informs the corporation of the identity of the stockholder and that the |
|---|
| 4059 | | - | stockholder intends thereby to demand the appraisal of such holder's |
|---|
| 4060 | | - | shares. If such notice did not notify stockholders of the effective date of |
|---|
| 4061 | | - | the merger or consolidation, either: (A) Each such constituent |
|---|
| 4062 | | - | corporation shall send a second notice before the effective date of the |
|---|
| 4063 | | - | merger or consolidation notifying each of the holders of any class or |
|---|
| 4064 | | - | series of stock of such constituent corporation that are entitled to |
|---|
| 4065 | | - | appraisal rights of the effective date of the merger or consolidation; or |
|---|
| 4066 | | - | (B) the surviving or resulting corporation shall send such a second |
|---|
| 4067 | | - | notice to all such holders on or within 10 days after such effective date; |
|---|
| 4068 | | - | provided, however, that. If such second notice is sent more than 20 |
|---|
| 4069 | | - | days following the sending of the first notice or, in the case of a merger |
|---|
| 4070 | | - | approved pursuant to K.S.A. 17-6701(h), and amendments thereto, later |
|---|
| 4071 | | - | than the later of the consummation of the tender or exchange offer |
|---|
| 4072 | | - | contemplated by K.S.A. 17-6701(h), and amendments thereto, and 20 |
|---|
| 4073 | | - | days following the sending of the first notice, such second notice need |
|---|
| 4074 | | - | only be sent to each stockholder who is entitled to appraisal rights and |
|---|
| 4075 | | - | who has demanded appraisal of such holder's shares in accordance with |
|---|
| 4076 | | - | this subsection. An affidavit of the secretary or assistant secretary or of |
|---|
| 4077 | | - | the transfer agent of the corporation that is required to give either |
|---|
| 4078 | | - | notice that such notice has been given shall, in the absence of fraud, be |
|---|
| 4079 | | - | prima facie evidence of the facts stated therein in such affidavit. For |
|---|
| 4080 | | - | purposes of determining the stockholders entitled to receive either |
|---|
| 4081 | | - | notice, each constituent corporation may fix, in advance, a record date |
|---|
| 4082 | | - | that shall be not more than 10 days prior to the date the notice is given, |
|---|
| 4083 | | - | provided, that. If the notice is given on or after the effective date of the |
|---|
| 4084 | | - | merger or consolidation, the record date shall be such effective date. If |
|---|
| 4085 | | - | no record date is fixed and the notice is given prior to the effective date, |
|---|
| 4086 | | - | the record date shall be the close of business on the day next preceding |
|---|
| 4087 | | - | the day on which when the notice is given. |
|---|
| 4088 | | - | (e) Within 120 days after the effective date of the merger or |
|---|
| 4089 | | - | consolidation, the surviving or resulting corporation or any stockholder |
|---|
| 4090 | | - | who has complied with subsections (a) and (d) and who is otherwise H Sub for SENATE BILL No. 244—page 70 |
|---|
| 4091 | | - | entitled to appraisal rights, may commence an appraisal proceeding by |
|---|
| 4092 | | - | filing a petition in the district court demanding a determination of the |
|---|
| 4093 | | - | value of the stock of all such stockholders. Notwithstanding the |
|---|
| 4094 | | - | foregoing provisions of this subsection, at any time within 60 days after |
|---|
| 4095 | | - | the effective date of the merger or consolidation, any stockholder who |
|---|
| 4096 | | - | has not commenced an appraisal proceeding or joined that proceeding |
|---|
| 4097 | | - | as a named party shall have the right to withdraw such stockholder's |
|---|
| 4098 | | - | demand for appraisal and to accept the terms offered upon the merger |
|---|
| 4099 | | - | or consolidation. Within 120 days after the effective date of the merger |
|---|
| 4100 | | - | or consolidation, any stockholder who has complied with the |
|---|
| 4101 | | - | requirements of subsections (a) and (d), upon written request given in |
|---|
| 4102 | | - | writing, or by electronic transmission directed to an information |
|---|
| 4103 | | - | processing system, if any, expressly designated for that purpose in the |
|---|
| 4104 | | - | notice of appraisal, shall be entitled to receive from the corporation |
|---|
| 4105 | | - | surviving the merger or resulting from the consolidation a statement |
|---|
| 4106 | | - | setting forth the aggregate number of shares not voted in favor of the |
|---|
| 4107 | | - | merger or consolidation and, or in the case of a merger approved |
|---|
| 4108 | | - | pursuant to K.S.A. 17-6701(h), and amendments thereto, the aggregate |
|---|
| 4109 | | - | number of shares, other than any excluded stock, as defined in K.S.A. |
|---|
| 4110 | | - | 17-6701(h)(2), and amendments thereto, that were the subject of, and |
|---|
| 4111 | | - | were not tendered into, and accepted for purchase or exchange in, the |
|---|
| 4112 | | - | offer referred to in K.S.A. 17-6701(h)(1)(B), and amendments thereto, |
|---|
| 4113 | | - | and, in either case, with respect to which demands for appraisal have |
|---|
| 4114 | | - | been received and the aggregate number of holders of such shares. |
|---|
| 4115 | | - | Such written statement shall be mailed given to the stockholder within |
|---|
| 4116 | | - | 10 days after such stockholder's written request for such a statement is |
|---|
| 4117 | | - | received by the surviving or resulting corporation or within 10 days |
|---|
| 4118 | | - | after expiration of the period for delivery of demands for appraisal |
|---|
| 4119 | | - | under subsection (d), whichever is later. Notwithstanding subsection |
|---|
| 4120 | | - | (a), a person who is the beneficial owner of shares of such stock held |
|---|
| 4121 | | - | either in a voting trust or by a nominee on behalf of such person may, |
|---|
| 4122 | | - | in such person's own name, file a petition or request from the |
|---|
| 4123 | | - | corporation the statement described in this subsection. |
|---|
| 4124 | | - | (f) Upon the filing of any such petition by a stockholder, service |
|---|
| 4125 | | - | of a copy thereof shall be made upon the surviving or resulting |
|---|
| 4126 | | - | corporation, which shall within 20 days after such service file in the |
|---|
| 4127 | | - | office of the clerk of the court in which where the petition was filed a |
|---|
| 4128 | | - | duly verified list containing the names and postal addresses of all |
|---|
| 4129 | | - | stockholders who have demanded payment for their shares and with |
|---|
| 4130 | | - | whom agreements as to the value of their shares have not been reached |
|---|
| 4131 | | - | by the surviving or resulting corporation. If the petition shall be filed by |
|---|
| 4132 | | - | the surviving or resulting corporation, the petition shall be |
|---|
| 4133 | | - | accompanied by such a duly verified list. The clerk of the court, if so |
|---|
| 4134 | | - | ordered by the court, shall give notice of the time and place fixed for |
|---|
| 4135 | | - | the hearing of such petition by registered or certified mail to the |
|---|
| 4136 | | - | surviving or resulting corporation and to the stockholders shown on the |
|---|
| 4137 | | - | list at the addresses therein stated in the list. Such notice shall also be |
|---|
| 4138 | | - | given by one or more publications at least one week before the day of |
|---|
| 4139 | | - | the hearing, in a newspaper of general circulation published in the |
|---|
| 4140 | | - | county in which where the court is located or such publication as the |
|---|
| 4141 | | - | court deems advisable. The forms of the notices by mail and by |
|---|
| 4142 | | - | publication shall be approved by the court, and the costs thereof shall |
|---|
| 4143 | | - | be borne by the surviving or resulting corporation. |
|---|
| 4144 | | - | (g) (1) At the hearing on such petition, the court shall determine |
|---|
| 4145 | | - | the stockholders who have complied with this section and who have |
|---|
| 4146 | | - | become entitled to appraisal rights. The court may require the |
|---|
| 4147 | | - | stockholders who have demanded an appraisal for their shares and who |
|---|
| 4148 | | - | hold stock represented by certificates to submit their certificates of |
|---|
| 4149 | | - | stock to the clerk of the court for notation thereon of the pendency of H Sub for SENATE BILL No. 244—page 71 |
|---|
| 4150 | | - | the appraisal proceedings; and if any stockholder fails to comply with |
|---|
| 4151 | | - | such direction, the court may dismiss the proceedings as to such |
|---|
| 4152 | | - | stockholder. |
|---|
| 4153 | | - | (2) This paragraph shall apply only with respect to transactions |
|---|
| 4154 | | - | consummated pursuant to agreements entered into, resolutions of the |
|---|
| 4155 | | - | board of directors adopted and authorizations provided, in each case |
|---|
| 4156 | | - | as applicable, on or after July 1, 2023. If immediately before the |
|---|
| 4157 | | - | merger or consolidation the shares of the class or series of stock of the |
|---|
| 4158 | | - | constituent corporation as to which appraisal rights are available were |
|---|
| 4159 | | - | listed on a national securities exchange, the court shall dismiss the |
|---|
| 4160 | | - | proceedings as to all holders of such shares who are otherwise entitled |
|---|
| 4161 | | - | to appraisal rights unless: |
|---|
| 4162 | | - | (A) The total number of shares entitled to appraisal exceeds 1% of |
|---|
| 4163 | | - | the outstanding shares of the class or series eligible for appraisal; |
|---|
| 4164 | | - | (B) the value of the consideration provided in the merger or |
|---|
| 4165 | | - | consolidation for such total number of shares exceeds $1,000,000; or |
|---|
| 4166 | | - | (C) the merger was approved pursuant to K.S.A. 17-6703, and |
|---|
| 4167 | | - | amendments thereto. |
|---|
| 4168 | | - | (h) (1) After the court determines the stockholders entitled to an |
|---|
| 4169 | | - | appraisal, the appraisal proceeding shall be conducted in accordance |
|---|
| 4170 | | - | with the rules of the district court, including any rules specifically |
|---|
| 4171 | | - | governing appraisal proceedings. Through such proceeding the court |
|---|
| 4172 | | - | shall determine the fair value of the shares exclusive of any element of |
|---|
| 4173 | | - | value arising from the accomplishment or expectation of the merger or |
|---|
| 4174 | | - | consolidation, together with interest, if any, to be paid upon the amount |
|---|
| 4175 | | - | determined to be the fair value. In determining such fair value, the |
|---|
| 4176 | | - | court shall take into account all relevant factors. Unless the court in its |
|---|
| 4177 | | - | discretion determines otherwise for good cause shown, and except as |
|---|
| 4178 | | - | provided in this subsection, interest from the effective date of the |
|---|
| 4179 | | - | merger through the date of payment of the judgment shall be |
|---|
| 4180 | | - | compounded quarterly and shall accrue at 5% over the federal reserve |
|---|
| 4181 | | - | discount rate, including any surcharge, as established from time to time |
|---|
| 4182 | | - | during the period between the effective date of the merger and the date |
|---|
| 4183 | | - | of payment of the judgment. |
|---|
| 4184 | | - | (2) This paragraph shall apply only with respect to transactions |
|---|
| 4185 | | - | consummated pursuant to agreements entered into, resolutions of the |
|---|
| 4186 | | - | board of directors adopted and authorizations provided, in each case |
|---|
| 4187 | | - | as applicable, on or after July 1, 2023. At any time before the entry of |
|---|
| 4188 | | - | judgment in the proceedings, the surviving corporation may pay to |
|---|
| 4189 | | - | each stockholder entitled to appraisal an amount in cash, in which |
|---|
| 4190 | | - | case interest shall accrue thereafter as provided in this paragraph only |
|---|
| 4191 | | - | upon the sum of: (A) The difference, if any, between the amount so paid |
|---|
| 4192 | | - | and the fair market value of the shares as determined by the court; and |
|---|
| 4193 | | - | (B) interest previously accrued unless paid at that time. Upon |
|---|
| 4194 | | - | application by the surviving or resulting corporation or by any |
|---|
| 4195 | | - | stockholder entitled to participate in the appraisal proceeding, the court |
|---|
| 4196 | | - | may, in its discretion, proceed to trial upon the appraisal prior to the |
|---|
| 4197 | | - | final determination of the stockholders entitled to an appraisal. Any |
|---|
| 4198 | | - | stockholder whose name appears on the list filed by the surviving or |
|---|
| 4199 | | - | resulting corporation pursuant to subsection (f) and who has submitted |
|---|
| 4200 | | - | such stockholder's certificates of stock to the clerk of the court, if such |
|---|
| 4201 | | - | is required, may participate fully in all proceedings until it is finally |
|---|
| 4202 | | - | determined that such stockholder is not entitled to appraisal rights |
|---|
| 4203 | | - | under this section. |
|---|
| 4204 | | - | (i) The court shall direct the payment of the fair value of the |
|---|
| 4205 | | - | shares, together with interest, if any, by the surviving or resulting |
|---|
| 4206 | | - | corporation to the stockholders entitled thereto. Payment shall be so |
|---|
| 4207 | | - | made to each such stockholder, in the case of holders of uncertificated |
|---|
| 4208 | | - | stock forthwith immediately, and the case of holders of shares H Sub for SENATE BILL No. 244—page 72 |
|---|
| 4209 | | - | represented by certificates upon the surrender to the corporation of the |
|---|
| 4210 | | - | certificates representing such stock. The court's decree may be enforced |
|---|
| 4211 | | - | as other decrees in the district court may be enforced, whether such |
|---|
| 4212 | | - | surviving or resulting corporation be a domestic corporation of this |
|---|
| 4213 | | - | state or of any state. |
|---|
| 4214 | | - | (j) The costs of the proceeding may be determined by the court |
|---|
| 4215 | | - | and taxed upon the parties as the court deems equitable in the |
|---|
| 4216 | | - | circumstances. Upon application of a stockholder, the court may order |
|---|
| 4217 | | - | all or a portion of the expenses incurred by any stockholder in |
|---|
| 4218 | | - | connection with the appraisal proceeding, including, without limitation, |
|---|
| 4219 | | - | reasonable attorney fees and the fees and expenses of experts, to be |
|---|
| 4220 | | - | charged pro rata against the value of all the shares entitled to an |
|---|
| 4221 | | - | appraisal. |
|---|
| 4222 | | - | (k) From and after the effective date of the merger or |
|---|
| 4223 | | - | consolidation, no stockholder who has demanded appraisal rights as |
|---|
| 4224 | | - | provided in subsection (d) shall be entitled to vote such stock for any |
|---|
| 4225 | | - | purpose or to receive payment of dividends or other distributions on the |
|---|
| 4226 | | - | stock, except dividends or other distributions payable to stockholders of |
|---|
| 4227 | | - | record at a date which that is prior to the effective date of the merger or |
|---|
| 4228 | | - | consolidation; provided, however, except that if no petition for an |
|---|
| 4229 | | - | appraisal shall be filed within the time provided in subsection (e), or if |
|---|
| 4230 | | - | such stockholder shall deliver to the surviving or resulting corporation |
|---|
| 4231 | | - | a written withdrawal of such stockholder's demand for an appraisal and |
|---|
| 4232 | | - | an acceptance of the merger or consolidation, either within 60 days |
|---|
| 4233 | | - | after the effective date of the merger or consolidation as provided in |
|---|
| 4234 | | - | subsection (e) or thereafter with the written approval of the corporation, |
|---|
| 4235 | | - | then the right of such stockholder to an appraisal shall cease. |
|---|
| 4236 | | - | Notwithstanding the foregoing provisions of this subsection, no |
|---|
| 4237 | | - | appraisal proceeding in the district court shall be dismissed as to any |
|---|
| 4238 | | - | stockholder without the approval of the court, and such approval may |
|---|
| 4239 | | - | be conditioned upon such terms as the court deems just, except that this |
|---|
| 4240 | | - | provision shall not affect the right of any stockholder who has not |
|---|
| 4241 | | - | commenced an appraisal proceeding or joined that proceeding as a |
|---|
| 4242 | | - | named party to withdraw such stockholder's demand for appraisal and |
|---|
| 4243 | | - | to accept the terms offered upon the merger or consolidation within 60 |
|---|
| 4244 | | - | days after the effective date of the merger or consolidation, as set forth |
|---|
| 4245 | | - | in subsection (e). |
|---|
| 4246 | | - | (l) The shares of the surviving or resulting corporation to which |
|---|
| 4247 | | - | the shares of such objecting stockholders would have been converted |
|---|
| 4248 | | - | had they assented to the merger or consolidation shall have the status of |
|---|
| 4249 | | - | authorized and unissued shares of the surviving or resulting |
|---|
| 4250 | | - | corporation. |
|---|
| 4251 | | - | Sec. 37. On and after January 1, 2024, K.S.A. 2022 Supp. 17- |
|---|
| 4252 | | - | 6712, as amended by section 36 of this act, is hereby amended to read |
|---|
| 4253 | | - | as follows: 17-6712. (a) Any stockholder of a domestic corporation |
|---|
| 4254 | | - | who holds shares of stock on the date of the making of a demand |
|---|
| 4255 | | - | pursuant to subsection (d) with respect to such shares, who |
|---|
| 4256 | | - | continuously holds such shares through the effective date of the merger |
|---|
| 4257 | | - | or consolidation, who has otherwise complied with subsection (d) and |
|---|
| 4258 | | - | who has neither voted in favor of the merger or consolidation nor |
|---|
| 4259 | | - | consented thereto in writing pursuant to K.S.A. 17-6518, and |
|---|
| 4260 | | - | amendments thereto, shall be entitled to an appraisal by the district |
|---|
| 4261 | | - | court of the fair value of the stockholder's shares of stock under the |
|---|
| 4262 | | - | circumstances described in subsections (b) and (c). As used in this |
|---|
| 4263 | | - | section: "Stockholder" means a holder of record of stock in a |
|---|
| 4264 | | - | corporation; "stock" and "share" mean and include what is ordinarily |
|---|
| 4265 | | - | meant by those words; and "depository receipt" means a receipt or |
|---|
| 4266 | | - | other instrument issued by a depository representing an interest in one |
|---|
| 4267 | | - | or more shares, or fractions thereof, solely of stock of a corporation that H Sub for SENATE BILL No. 244—page 73 |
|---|
| 4268 | | - | is deposited with the depository. |
|---|
| 4269 | | - | (b) Appraisal rights shall be available for the shares of any class or |
|---|
| 4270 | | - | series of stock of a constituent corporation in a merger or consolidation |
|---|
| 4271 | | - | to be effected pursuant to K.S.A. 17-6701, other than a merger effected |
|---|
| 4272 | | - | pursuant to K.S.A. 17-6701(g), and amendments thereto, and 17-6702, |
|---|
| 4273 | | - | 17-6705, 17-6706, 17-6707 and 17-6708, and amendments thereto: |
|---|
| 4274 | | - | (1) Except that no appraisal rights under this section shall be |
|---|
| 4275 | | - | available for the shares of any class or series of stock, which stock, or |
|---|
| 4276 | | - | depository receipts in respect thereof, at the record date fixed to |
|---|
| 4277 | | - | determine the stockholders entitled to receive notice of the meeting of |
|---|
| 4278 | | - | stockholders to act upon the agreement of merger or consolidation, or |
|---|
| 4279 | | - | in the case of a merger pursuant to K.S.A. 17-7601(h), and amendments |
|---|
| 4280 | | - | thereto, as of immediately prior to the execution of the agreement of |
|---|
| 4281 | | - | merger, were either: |
|---|
| 4282 | | - | (A) Listed on a national securities exchange; or |
|---|
| 4283 | | - | (B) held of record by more than 2,000 holders, except that no |
|---|
| 4284 | | - | appraisal rights shall be available for any shares of stock of the |
|---|
| 4285 | | - | constituent corporation surviving a merger if the merger did not require |
|---|
| 4286 | | - | for its approval the vote of the stockholders of the surviving |
|---|
| 4287 | | - | corporation as provided in K.S.A. 17-6701(f), and amendments thereto. |
|---|
| 4288 | | - | (2) Notwithstanding subsection (b)(1), appraisal rights under this |
|---|
| 4289 | | - | section shall be available for the shares of any class or series of stock of |
|---|
| 4290 | | - | a constituent corporation if the holders thereof are required by the terms |
|---|
| 4291 | | - | of an agreement of merger or consolidation pursuant to K.S.A. 17- |
|---|
| 4292 | | - | 6701, 17-6702, 17-6705, 17-6706, 17-6707 and 17-6708, and |
|---|
| 4293 | | - | amendments thereto, to accept for such stock anything except: |
|---|
| 4294 | | - | (A) Shares of stock of the corporation surviving or resulting from |
|---|
| 4295 | | - | such merger or consolidation, or depository receipts in respect thereof; |
|---|
| 4296 | | - | (B) shares of stock of any other corporation, or depository receipts |
|---|
| 4297 | | - | in respect thereof, which shares of stock, or depository receipts in |
|---|
| 4298 | | - | respect thereof, or depository receipts at the effective date of the merger |
|---|
| 4299 | | - | or consolidation will be either listed on a national securities exchange |
|---|
| 4300 | | - | or held of record by more than 2,000 holders; |
|---|
| 4301 | | - | (C) cash in lieu of fractional shares or fractional depository |
|---|
| 4302 | | - | receipts described in subparagraphs (A) and (B); or |
|---|
| 4303 | | - | (D) any combination of the shares of stock, depository receipts |
|---|
| 4304 | | - | and cash in lieu of fractional shares or fractional depository receipts |
|---|
| 4305 | | - | described in subparagraphs (A), (B) and (C). |
|---|
| 4306 | | - | (3) In the event all of the stock of a subsidiary domestic |
|---|
| 4307 | | - | corporation party to a merger effected under K.S.A. 17-6703, and |
|---|
| 4308 | | - | amendments thereto, is not owned by the parent immediately prior to |
|---|
| 4309 | | - | the merger, appraisal rights shall be available for the shares of the |
|---|
| 4310 | | - | subsidiary domestic corporation. |
|---|
| 4311 | | - | (4) This paragraph shall apply only with respect to a merger or |
|---|
| 4312 | | - | consolidation consummated pursuant to an agreement entered into or |
|---|
| 4313 | | - | resolutions of the board of directors adopted, as applicable, before July |
|---|
| 4314 | | - | 1, 2023. In the event of an amendment to a corporation's articles of |
|---|
| 4315 | | - | incorporation contemplated by K.S.A. 2022 Supp. 17-72a03, and |
|---|
| 4316 | | - | amendments thereto, appraisal rights shall be available as contemplated |
|---|
| 4317 | | - | by K.S.A. 2022 Supp. 17-72a03, and amendments thereto, and the |
|---|
| 4318 | | - | procedures of this section, including those set forth in subsections (d) |
|---|
| 4319 | | - | and (e), shall apply as nearly as practicable, with the word |
|---|
| 4320 | | - | "amendment" substituted for the words "merger or consolidation," and |
|---|
| 4321 | | - | the word "corporation" substituted for the words "constituent |
|---|
| 4322 | | - | corporation" or "surviving or resulting corporation." |
|---|
| 4323 | | - | (c) Any corporation may provide in its articles of incorporation |
|---|
| 4324 | | - | that appraisal rights under this section shall be available for the shares |
|---|
| 4325 | | - | of any class or series of its stock as a result of an amendment to its |
|---|
| 4326 | | - | articles of incorporation, any merger or consolidation in which the H Sub for SENATE BILL No. 244—page 74 |
|---|
| 4327 | | - | corporation is a constituent corporation or the sale of all or substantially |
|---|
| 4328 | | - | all of the assets of the corporation. If the articles of incorporation |
|---|
| 4329 | | - | contain such a provision, the provisions of this section, including those |
|---|
| 4330 | | - | set forth in subsections (d), (e) and (g) shall apply as nearly as is |
|---|
| 4331 | | - | practicable. |
|---|
| 4332 | | - | (d) Appraisal rights shall be perfected as follows: |
|---|
| 4333 | | - | (1) If a proposed merger or consolidation for which appraisal |
|---|
| 4334 | | - | rights are provided under this section is to be submitted for approval at |
|---|
| 4335 | | - | a meeting of stockholders, the corporation, not less than 20 days prior |
|---|
| 4336 | | - | to the meeting, shall notify each of its stockholders who was such on |
|---|
| 4337 | | - | the record date for notice of such meeting, or such members who |
|---|
| 4338 | | - | received notice in accordance with K.S.A. 17-6705, and amendments |
|---|
| 4339 | | - | thereto, with respect to shares for which appraisal rights are available |
|---|
| 4340 | | - | pursuant to subsection (b) or (c) that appraisal rights are available for |
|---|
| 4341 | | - | any or all of the shares of the constituent corporations, and shall include |
|---|
| 4342 | | - | in such notice a copy of this section and, if one of the constituent |
|---|
| 4343 | | - | corporations is a nonstock corporation, a copy of K.S.A. 2022 Supp. |
|---|
| 4344 | | - | 17-6014, and amendments thereto. Each stockholder electing to |
|---|
| 4345 | | - | demand the appraisal of such stockholder's shares shall deliver to the |
|---|
| 4346 | | - | corporation, before the taking of the vote on the merger or |
|---|
| 4347 | | - | consolidation, a written demand for appraisal of such stockholder's |
|---|
| 4348 | | - | shares. A demand may be delivered to the corporation by electronic |
|---|
| 4349 | | - | transmission if directed to an information processing system, if any, |
|---|
| 4350 | | - | expressly designated for that purpose in such notice. Such demand will |
|---|
| 4351 | | - | be sufficient if it reasonably informs the corporation of the identity of |
|---|
| 4352 | | - | the stockholder and that the stockholder intends thereby to demand the |
|---|
| 4353 | | - | appraisal of such stockholder's shares. A proxy or vote against the |
|---|
| 4354 | | - | merger or consolidation shall not constitute such a demand. A |
|---|
| 4355 | | - | stockholder electing to take such action must do so by a separate |
|---|
| 4356 | | - | written demand as provided in this subsection. Within 10 days after the |
|---|
| 4357 | | - | effective date of such merger or consolidation, the surviving or |
|---|
| 4358 | | - | resulting corporation shall notify each stockholder of each constituent |
|---|
| 4359 | | - | corporation who has complied with this subsection and has not voted in |
|---|
| 4360 | | - | favor of or consented to the merger or consolidation of the date that the |
|---|
| 4361 | | - | merger or consolidation has become effective; or |
|---|
| 4362 | | - | (2) if the merger or consolidation was approved pursuant to |
|---|
| 4363 | | - | K.S.A. 17-6518, 17-6701(h) or 17-6703, and amendments thereto, then, |
|---|
| 4364 | | - | either a constituent corporation before the effective date of the merger |
|---|
| 4365 | | - | or consolidation or the surviving or resulting corporation within 10 |
|---|
| 4366 | | - | days thereafter shall notify each of the holders of any class or series of |
|---|
| 4367 | | - | stock of such constituent corporation who are entitled to appraisal |
|---|
| 4368 | | - | rights of the approval of the merger or consolidation and that appraisal |
|---|
| 4369 | | - | rights are available for any or all shares of such class or series of stock |
|---|
| 4370 | | - | of such constituent corporation, and shall include in such notice a copy |
|---|
| 4371 | | - | of this section and, if one of the constituent corporations is a nonstock |
|---|
| 4372 | | - | corporation, a copy of K.S.A. 2022 Supp. 17-6014, and amendments |
|---|
| 4373 | | - | thereto. Such notice may, and, if given on or after the effective date of |
|---|
| 4374 | | - | the merger or consolidation, shall, also notify such stockholders of the |
|---|
| 4375 | | - | effective date of the merger or consolidation. Any stockholder entitled |
|---|
| 4376 | | - | to appraisal rights may, within 20 days after the date of giving such |
|---|
| 4377 | | - | notice or, in the case of a merger approved pursuant to K.S.A. 17- |
|---|
| 4378 | | - | 6701(h), and amendments thereto, within the later of the consummation |
|---|
| 4379 | | - | of the offer contemplated by K.S.A. 17-6701(h), and amendments |
|---|
| 4380 | | - | thereto, and 20 days after the date of giving such notice, demand in |
|---|
| 4381 | | - | writing from the surviving or resulting corporation the appraisal of such |
|---|
| 4382 | | - | holder's shares. A demand may be delivered to the corporation by |
|---|
| 4383 | | - | electronic transmission if directed to an information processing system, |
|---|
| 4384 | | - | if any, designated for that purpose in such notice. Such demand will be |
|---|
| 4385 | | - | sufficient if it reasonably informs the corporation of the identity of the H Sub for SENATE BILL No. 244—page 75 |
|---|
| 4386 | | - | stockholder and that the stockholder intends thereby to demand the |
|---|
| 4387 | | - | appraisal of such holder's shares. If such notice did not notify |
|---|
| 4388 | | - | stockholders of the effective date of the merger or consolidation, either: |
|---|
| 4389 | | - | (A) Each such constituent corporation shall send a second notice before |
|---|
| 4390 | | - | the effective date of the merger or consolidation notifying each of the |
|---|
| 4391 | | - | holders of any class or series of stock of such constituent corporation |
|---|
| 4392 | | - | that are entitled to appraisal rights of the effective date of the merger or |
|---|
| 4393 | | - | consolidation; or (B) the surviving or resulting corporation shall send |
|---|
| 4394 | | - | such a second notice to all such holders on or within 10 days after such |
|---|
| 4395 | | - | effective date. If such second notice is sent more than 20 days |
|---|
| 4396 | | - | following the sending of the first notice or, in the case of a merger |
|---|
| 4397 | | - | approved pursuant to K.S.A. 17-6701(h), and amendments thereto, later |
|---|
| 4398 | | - | than the later of the consummation of the offer contemplated by K.S.A. |
|---|
| 4399 | | - | 17-6701(h), and amendments thereto, and 20 days following the |
|---|
| 4400 | | - | sending of the first notice, such second notice need only be sent to each |
|---|
| 4401 | | - | stockholder who is entitled to appraisal rights and who has demanded |
|---|
| 4402 | | - | appraisal of such holder's shares in accordance with this subsection. An |
|---|
| 4403 | | - | affidavit of the secretary or assistant secretary or of the transfer agent |
|---|
| 4404 | | - | of the corporation that is required to give either notice that such notice |
|---|
| 4405 | | - | has been given shall, in the absence of fraud, be prima facie evidence of |
|---|
| 4406 | | - | the facts stated in such affidavit. For purposes of determining the |
|---|
| 4407 | | - | stockholders entitled to receive either notice, each constituent |
|---|
| 4408 | | - | corporation may fix, in advance, a record date that shall be not more |
|---|
| 4409 | | - | than 10 days prior to the date the notice is given. If the notice is given |
|---|
| 4410 | | - | on or after the effective date of the merger or consolidation, the record |
|---|
| 4411 | | - | date shall be such effective date. If no record date is fixed and the |
|---|
| 4412 | | - | notice is given prior to the effective date, the record date shall be the |
|---|
| 4413 | | - | close of business on the day next preceding the day when the notice is |
|---|
| 4414 | | - | given. |
|---|
| 4415 | | - | (e) Within 120 days after the effective date of the merger or |
|---|
| 4416 | | - | consolidation, the surviving or resulting corporation or any stockholder |
|---|
| 4417 | | - | who has complied with subsections (a) and (d) and who is otherwise |
|---|
| 4418 | | - | entitled to appraisal rights, may commence an appraisal proceeding by |
|---|
| 4419 | | - | filing a petition in the district court demanding a determination of the |
|---|
| 4420 | | - | value of the stock of all such stockholders. Notwithstanding the |
|---|
| 4421 | | - | provisions of this subsection, at any time within 60 days after the |
|---|
| 4422 | | - | effective date of the merger or consolidation, any stockholder who has |
|---|
| 4423 | | - | not commenced an appraisal proceeding or joined that proceeding as a |
|---|
| 4424 | | - | named party shall have the right to withdraw such stockholder's |
|---|
| 4425 | | - | demand for appraisal and to accept the terms offered upon the merger |
|---|
| 4426 | | - | or consolidation. Within 120 days after the effective date of the merger |
|---|
| 4427 | | - | or consolidation, any stockholder who has complied with the |
|---|
| 4428 | | - | requirements of subsections (a) and (d), upon request given in writing, |
|---|
| 4429 | | - | or by electronic transmission directed to an information processing |
|---|
| 4430 | | - | system, if any, expressly designated for that purpose in the notice of |
|---|
| 4431 | | - | appraisal, shall be entitled to receive from the corporation surviving the |
|---|
| 4432 | | - | merger or resulting from the consolidation a statement setting forth the |
|---|
| 4433 | | - | aggregate number of shares not voted in favor of the merger or |
|---|
| 4434 | | - | consolidation, or in the case of a merger approved pursuant to K.S.A. |
|---|
| 4435 | | - | 17-6701(h), and amendments thereto, the aggregate number of shares, |
|---|
| 4436 | | - | other than any excluded stock, as defined in K.S.A. 17-6701(h)(2), and |
|---|
| 4437 | | - | amendments thereto, that were the subject of, and were not tendered |
|---|
| 4438 | | - | into, and accepted for purchase or exchange in, the offer referred to in |
|---|
| 4439 | | - | K.S.A. 17-6701(h)(1)(B), and amendments thereto, and, in either case, |
|---|
| 4440 | | - | with respect to which demands for appraisal have been received and the |
|---|
| 4441 | | - | aggregate number of holders of such shares. Such statement shall be |
|---|
| 4442 | | - | given to the stockholder within 10 days after such stockholder's request |
|---|
| 4443 | | - | for such a statement is received by the surviving or resulting |
|---|
| 4444 | | - | corporation or within 10 days after expiration of the period for delivery H Sub for SENATE BILL No. 244—page 76 |
|---|
| 4445 | | - | of demands for appraisal under subsection (d), whichever is later. |
|---|
| 4446 | | - | Notwithstanding subsection (a), a person who is the beneficial owner of |
|---|
| 4447 | | - | shares of such stock held either in a voting trust or by a nominee on |
|---|
| 4448 | | - | behalf of such person may, in such person's own name, file a petition or |
|---|
| 4449 | | - | request from the corporation the statement described in this subsection. |
|---|
| 4450 | | - | (f) Upon the filing of any such petition by a stockholder, service |
|---|
| 4451 | | - | of a copy thereof shall be made upon the surviving or resulting |
|---|
| 4452 | | - | corporation, which shall within 20 days after such service file in the |
|---|
| 4453 | | - | office of the clerk of the court where the petition was filed a duly |
|---|
| 4454 | | - | verified list containing the names and postal addresses of all |
|---|
| 4455 | | - | stockholders who have demanded payment for their shares and with |
|---|
| 4456 | | - | whom agreements as to the value of their shares have not been reached |
|---|
| 4457 | | - | by the surviving or resulting corporation. If the petition shall be filed by |
|---|
| 4458 | | - | the surviving or resulting corporation, the petition shall be |
|---|
| 4459 | | - | accompanied by such a duly verified list. The clerk of the court, if so |
|---|
| 4460 | | - | ordered by the court, shall give notice of the time and place fixed for |
|---|
| 4461 | | - | the hearing of such petition by registered or certified mail to the |
|---|
| 4462 | | - | surviving or resulting corporation and to the stockholders shown on the |
|---|
| 4463 | | - | list at the addresses stated in the list. Such notice shall also be given by |
|---|
| 4464 | | - | one or more publications at least one week before the day of the |
|---|
| 4465 | | - | hearing, in a newspaper of general circulation published in the county |
|---|
| 4466 | | - | where the court is located or such publication as the court deems |
|---|
| 4467 | | - | advisable. The forms of the notices by mail and by publication shall be |
|---|
| 4468 | | - | approved by the court, and the costs thereof shall be borne by the |
|---|
| 4469 | | - | surviving or resulting corporation. |
|---|
| 4470 | | - | (g) (1) At the hearing on such petition, the court shall determine |
|---|
| 4471 | | - | the stockholders who have complied with this section and who have |
|---|
| 4472 | | - | become entitled to appraisal rights. The court may require the |
|---|
| 4473 | | - | stockholders who have demanded an appraisal for their shares and who |
|---|
| 4474 | | - | hold stock represented by certificates to submit their certificates of |
|---|
| 4475 | | - | stock to the clerk of the court for notation thereon of the pendency of |
|---|
| 4476 | | - | the appraisal proceedings; and if any stockholder fails to comply with |
|---|
| 4477 | | - | such direction, the court may dismiss the proceedings as to such |
|---|
| 4478 | | - | stockholder. |
|---|
| 4479 | | - | (2) This paragraph shall apply only with respect to transactions |
|---|
| 4480 | | - | consummated pursuant to agreements entered into, resolutions of the |
|---|
| 4481 | | - | board of directors adopted and authorizations provided, in each case as |
|---|
| 4482 | | - | applicable, on or after July 1, 2023. If immediately before the merger or |
|---|
| 4483 | | - | consolidation the shares of the class or series of stock of the constituent |
|---|
| 4484 | | - | corporation as to which appraisal rights are available were listed on a |
|---|
| 4485 | | - | national securities exchange, the court shall dismiss the proceedings as |
|---|
| 4486 | | - | to all holders of such shares who are otherwise entitled to appraisal |
|---|
| 4487 | | - | rights unless: |
|---|
| 4488 | | - | (A) The total number of shares entitled to appraisal exceeds 1% of |
|---|
| 4489 | | - | the outstanding shares of the class or series eligible for appraisal; |
|---|
| 4490 | | - | (B) the value of the consideration provided in the merger or |
|---|
| 4491 | | - | consolidation for such total number of shares exceeds $1,000,000; or |
|---|
| 4492 | | - | (C) the merger was approved pursuant to K.S.A. 17-6703, and |
|---|
| 4493 | | - | amendments thereto. |
|---|
| 4494 | | - | (h) (1) After the court determines the stockholders entitled to an |
|---|
| 4495 | | - | appraisal, the appraisal proceeding shall be conducted in accordance |
|---|
| 4496 | | - | with the rules of the district court, including any rules specifically |
|---|
| 4497 | | - | governing appraisal proceedings. Through such proceeding the court |
|---|
| 4498 | | - | shall determine the fair value of the shares exclusive of any element of |
|---|
| 4499 | | - | value arising from the accomplishment or expectation of the merger or |
|---|
| 4500 | | - | consolidation, together with interest, if any, to be paid upon the amount |
|---|
| 4501 | | - | determined to be the fair value. In determining such fair value, the |
|---|
| 4502 | | - | court shall take into account all relevant factors. Unless the court in its |
|---|
| 4503 | | - | discretion determines otherwise for good cause shown, and except as H Sub for SENATE BILL No. 244—page 77 |
|---|
| 4504 | | - | provided in this subsection, interest from the effective date of the |
|---|
| 4505 | | - | merger through the date of payment of the judgment shall be |
|---|
| 4506 | | - | compounded quarterly and shall accrue at 5% over the federal reserve |
|---|
| 4507 | | - | discount rate, including any surcharge, as established from time to time |
|---|
| 4508 | | - | during the period between the effective date of the merger and the date |
|---|
| 4509 | | - | of payment of the judgment. |
|---|
| 4510 | | - | (2) This paragraph shall apply only with respect to transactions |
|---|
| 4511 | | - | consummated pursuant to agreements entered into, resolutions of the |
|---|
| 4512 | | - | board of directors adopted and authorizations provided, in each case as |
|---|
| 4513 | | - | applicable, on or after July 1, 2023. At any time before the entry of |
|---|
| 4514 | | - | judgment in the proceedings, the surviving corporation may pay to each |
|---|
| 4515 | | - | stockholder entitled to appraisal an amount in cash, in which case |
|---|
| 4516 | | - | interest shall accrue thereafter as provided in this paragraph only upon |
|---|
| 4517 | | - | the sum of: (A) The difference, if any, between the amount so paid and |
|---|
| 4518 | | - | the fair market value of the shares as determined by the court; and (B) |
|---|
| 4519 | | - | interest previously accrued unless paid at that time. Upon application |
|---|
| 4520 | | - | by the surviving or resulting corporation or by any stockholder entitled |
|---|
| 4521 | | - | to participate in the appraisal proceeding, the court may, in its |
|---|
| 4522 | | - | discretion, proceed to trial upon the appraisal prior to the final |
|---|
| 4523 | | - | determination of the stockholders entitled to an appraisal. Any |
|---|
| 4524 | | - | stockholder whose name appears on the list filed by the surviving or |
|---|
| 4525 | | - | resulting corporation pursuant to subsection (f) and who has submitted |
|---|
| 4526 | | - | such stockholder's certificates of stock to the clerk of the court, if such |
|---|
| 4527 | | - | is required, may participate fully in all proceedings until it is finally |
|---|
| 4528 | | - | determined that such stockholder is not entitled to appraisal rights |
|---|
| 4529 | | - | under this section. |
|---|
| 4530 | | - | (i) The court shall direct the payment of the fair value of the |
|---|
| 4531 | | - | shares, together with interest, if any, by the surviving or resulting |
|---|
| 4532 | | - | corporation to the stockholders entitled thereto. Payment shall be so |
|---|
| 4533 | | - | made to each such stockholder, in the case of holders of uncertificated |
|---|
| 4534 | | - | stock immediately, and the case of holders of shares represented by |
|---|
| 4535 | | - | certificates upon the surrender to the corporation of the certificates |
|---|
| 4536 | | - | representing such stock. The court's decree may be enforced as other |
|---|
| 4537 | | - | decrees in the district court may be enforced, whether such surviving or |
|---|
| 4538 | | - | resulting corporation be a domestic corporation or of any state. |
|---|
| 4539 | | - | (j) The costs of the proceeding may be determined by the court |
|---|
| 4540 | | - | and taxed upon the parties as the court deems equitable in the |
|---|
| 4541 | | - | circumstances. Upon application of a stockholder, the court may order |
|---|
| 4542 | | - | all or a portion of the expenses incurred by any stockholder in |
|---|
| 4543 | | - | connection with the appraisal proceeding, including, without limitation, |
|---|
| 4544 | | - | reasonable attorney fees and the fees and expenses of experts, to be |
|---|
| 4545 | | - | charged pro rata against the value of all the shares entitled to an |
|---|
| 4546 | | - | appraisal. |
|---|
| 4547 | | - | (k) From and after the effective date of the merger or |
|---|
| 4548 | | - | consolidation, no stockholder who has demanded appraisal rights as |
|---|
| 4549 | | - | provided in subsection (d) shall be entitled to vote such stock for any |
|---|
| 4550 | | - | purpose or to receive payment of dividends or other distributions on the |
|---|
| 4551 | | - | stock, except dividends or other distributions payable to stockholders of |
|---|
| 4552 | | - | record at a date that is prior to the effective date of the merger or |
|---|
| 4553 | | - | consolidation, except that if no petition for an appraisal shall be filed |
|---|
| 4554 | | - | within the time provided in subsection (e), or if such stockholder shall |
|---|
| 4555 | | - | deliver to the surviving or resulting corporation a written withdrawal of |
|---|
| 4556 | | - | such stockholder's demand for an appraisal and an acceptance of the |
|---|
| 4557 | | - | merger or consolidation, either within 60 days after the effective date of |
|---|
| 4558 | | - | the merger or consolidation as provided in subsection (e) or thereafter |
|---|
| 4559 | | - | with the written approval of the corporation, then the right of such |
|---|
| 4560 | | - | stockholder to an appraisal shall cease. Notwithstanding the provisions |
|---|
| 4561 | | - | of this subsection, no appraisal proceeding in the district court shall be |
|---|
| 4562 | | - | dismissed as to any stockholder without the approval of the court, and H Sub for SENATE BILL No. 244—page 78 |
|---|
| 4563 | | - | such approval may be conditioned upon such terms as the court deems |
|---|
| 4564 | | - | just, except that this provision shall not affect the right of any |
|---|
| 4565 | | - | stockholder who has not commenced an appraisal proceeding or joined |
|---|
| 4566 | | - | that proceeding as a named party to withdraw such stockholder's |
|---|
| 4567 | | - | demand for appraisal and to accept the terms offered upon the merger |
|---|
| 4568 | | - | or consolidation within 60 days after the effective date of the merger or |
|---|
| 4569 | | - | consolidation, as set forth in subsection (e). |
|---|
| 4570 | | - | (l) The shares of the surviving or resulting corporation to which |
|---|
| 4571 | | - | the shares of such objecting stockholders would have been converted |
|---|
| 4572 | | - | had they assented to the merger or consolidation shall have the status of |
|---|
| 4573 | | - | authorized and unissued shares of the surviving or resulting |
|---|
| 4574 | | - | corporation. |
|---|
| 4575 | | - | Sec. 38. K.S.A. 2022 Supp. 17-6804 is hereby amended to read as |
|---|
| 4576 | | - | follows: 17-6804. (a) If it should be deemed advisable in the judgment |
|---|
| 4577 | | - | of the board of directors of any corporation that it should be dissolved, |
|---|
| 4578 | | - | the board, after the adoption of a resolution to that effect by a majority |
|---|
| 4579 | | - | of the whole board at any meeting called for that purpose, shall cause |
|---|
| 4580 | | - | notice of the adoption of the resolution and of a meeting of |
|---|
| 4581 | | - | stockholders to take action upon the resolution to be mailed given to |
|---|
| 4582 | | - | each stockholder entitled to vote thereon as of the record date for |
|---|
| 4583 | | - | determining the stockholders entitled to notice of the meeting. |
|---|
| 4584 | | - | (b) At the meeting a vote shall be taken upon the proposed |
|---|
| 4585 | | - | dissolution. If a majority of the outstanding stock of the corporation |
|---|
| 4586 | | - | entitled to vote thereon shall vote for the proposed dissolution, a |
|---|
| 4587 | | - | certificate of dissolution shall be filed with the secretary of state |
|---|
| 4588 | | - | pursuant to subsection (d). |
|---|
| 4589 | | - | (c) Dissolution of a corporation may also be authorized without |
|---|
| 4590 | | - | action of the directors if all the stockholders entitled to vote thereon |
|---|
| 4591 | | - | shall consent in writing and a certificate of dissolution shall be filed |
|---|
| 4592 | | - | with the secretary of state pursuant to subsection (d). |
|---|
| 4593 | | - | (d) If dissolution is authorized in accordance with this section, a |
|---|
| 4594 | | - | certificate of dissolution shall be executed and filed, and shall become |
|---|
| 4595 | | - | effective, in accordance with K.S.A. 2022 Supp. 17-7908 through 17- |
|---|
| 4596 | | - | 7911, and amendments thereto. Such certificate of dissolution shall set |
|---|
| 4597 | | - | forth: |
|---|
| 4598 | | - | (1) The name of the corporation; |
|---|
| 4599 | | - | (2) the date dissolution was authorized; |
|---|
| 4600 | | - | (3) that the dissolution has been authorized by the board of |
|---|
| 4601 | | - | directors and stockholders of the corporation, in accordance with |
|---|
| 4602 | | - | subsections (a) and (b), or that the dissolution has been authorized by |
|---|
| 4603 | | - | all of the stockholders of the corporation entitled to vote on a |
|---|
| 4604 | | - | dissolution, in accordance with subsection (c); and |
|---|
| 4605 | | - | (4) the names and postal addresses of the directors and officers of |
|---|
| 4606 | | - | the corporation. |
|---|
| 4607 | | - | (e) The resolution authorizing a proposed dissolution may provide |
|---|
| 4608 | | - | that notwithstanding authorization or consent to the proposed |
|---|
| 4609 | | - | dissolution by the stockholders, or the members of a nonstock |
|---|
| 4610 | | - | corporation pursuant to K.S.A. 17-6805, and amendments thereto, the |
|---|
| 4611 | | - | board of directors or governing body may abandon such proposed |
|---|
| 4612 | | - | dissolution without further action by the stockholders or members. |
|---|
| 4613 | | - | (f) Upon a certificate of dissolution becoming effective in |
|---|
| 4614 | | - | accordance with K.S.A. 2022 Supp. 17-7911, and amendments thereto, |
|---|
| 4615 | | - | the corporation shall be dissolved. |
|---|
| 4616 | | - | (g) (1) If the stockholders of a corporation having only two |
|---|
| 4617 | | - | stockholders, each of which owns 50% of the stock therein, are unable |
|---|
| 4618 | | - | to agree upon the desirability of dissolving the corporation and |
|---|
| 4619 | | - | disposing of the corporate assets, either stockholder may file with the |
|---|
| 4620 | | - | district court a petition stating that it such stockholder desires to |
|---|
| 4621 | | - | dissolve the corporation and to dispose of the assets thereof in H Sub for SENATE BILL No. 244—page 79 |
|---|
| 4622 | | - | accordance with a plan to be agreed upon by both stockholders. Such |
|---|
| 4623 | | - | petition shall have attached thereto a copy of the proposed plan of |
|---|
| 4624 | | - | dissolution and distribution and a certificate stating that copies of such |
|---|
| 4625 | | - | petition and plan have been transmitted in writing to the other |
|---|
| 4626 | | - | stockholder and to the directors and officers of such corporation. |
|---|
| 4627 | | - | (2) Unless both stockholders file with the district court: (1), within |
|---|
| 4628 | | - | three months of the date of the filing of such petition, a certificate |
|---|
| 4629 | | - | stating that they have agreed on such plan, or a modification thereof;, |
|---|
| 4630 | | - | and (2) within one year from the date of the filing of such petition, a |
|---|
| 4631 | | - | certificate stating that the distribution provided by such plan has been |
|---|
| 4632 | | - | completed, the court may either: |
|---|
| 4633 | | - | (A) Dissolve such corporation and, by appointment of one or more |
|---|
| 4634 | | - | receivers with all the powers and title of a receiver appointed under |
|---|
| 4635 | | - | K.S.A. 17-6808, and amendments thereto, may administer and wind up |
|---|
| 4636 | | - | its affairs; |
|---|
| 4637 | | - | (B) order the redemption of the stock of one of the stockholders |
|---|
| 4638 | | - | on such terms as are just and equitable; or |
|---|
| 4639 | | - | (C) decline to grant any relief. Either or both of the above periods |
|---|
| 4640 | | - | of time may be extended by agreement of the stockholders, evidenced |
|---|
| 4641 | | - | by a certificate filed with the court prior to the expiration of such |
|---|
| 4642 | | - | period. |
|---|
| 4643 | | - | Sec. 39. K.S.A. 2022 Supp. 17-6812 is hereby amended to read as |
|---|
| 4644 | | - | follows: 17-6812. (a) Upon motion by the attorney general, the district |
|---|
| 4645 | | - | court shall have jurisdiction to revoke or forfeit the articles of |
|---|
| 4646 | | - | incorporation of any corporation for abuse, misuse or nonuse of its |
|---|
| 4647 | | - | corporate powers, privileges or franchises. The attorney general shall, |
|---|
| 4648 | | - | upon the attorney general's own motion or upon the relation of a proper |
|---|
| 4649 | | - | party, proceed for this purpose by petition in the district court of the |
|---|
| 4650 | | - | county in which where the registered office of the corporation is |
|---|
| 4651 | | - | located. |
|---|
| 4652 | | - | (b) The district court shall have power, by appointment of |
|---|
| 4653 | | - | trustees, receivers or otherwise, to administer and wind up the affairs of |
|---|
| 4654 | | - | any corporation whose articles of incorporation shall be revoked or |
|---|
| 4655 | | - | forfeited by any court under any this section of this code or otherwise, |
|---|
| 4656 | | - | and to make such orders and decrees with respect thereto as shall be |
|---|
| 4657 | | - | just and equitable respecting its affairs and assets and the rights of its |
|---|
| 4658 | | - | stockholders and creditors. |
|---|
| 4659 | | - | (c) No proceeding shall be instituted under this section for nonuse |
|---|
| 4660 | | - | of any corporation's powers, privileges or franchises during the first |
|---|
| 4661 | | - | two years after its incorporation. |
|---|
| 4662 | | - | Sec. 40. K.S.A. 2022 Supp. 17-7001 is hereby amended to read as |
|---|
| 4663 | | - | follows: 17-7001. (a) At any time prior to the expiration of three years |
|---|
| 4664 | | - | following the dissolution of a corporation pursuant to K.S.A. 17-6804, |
|---|
| 4665 | | - | and amendments thereto, or such longer period as the district court |
|---|
| 4666 | | - | may have directed pursuant to K.S.A. 17-6807, and amendments |
|---|
| 4667 | | - | thereto, or, at any time prior to the expiration of three years following |
|---|
| 4668 | | - | the expiration of the time limited for the corporation's existence as |
|---|
| 4669 | | - | provided in its articles of incorporation or such longer period as the |
|---|
| 4670 | | - | court may have directed pursuant to K.S.A. 17-6807, and amendments |
|---|
| 4671 | | - | thereto, a corporation may revoke the dissolution theretofore effected |
|---|
| 4672 | | - | by it or restore its articles of incorporation after it has expired of its |
|---|
| 4673 | | - | own limitation in the following manner: |
|---|
| 4674 | | - | (1) For purposes of this section, the term "stockholders" shall |
|---|
| 4675 | | - | mean means the stockholders of record on the date the dissolution |
|---|
| 4676 | | - | became effective or the date of expiration by limitation. |
|---|
| 4677 | | - | (2) The board of directors shall adopt a resolution recommending |
|---|
| 4678 | | - | that the dissolution be revoked in the case of a dissolution or that the |
|---|
| 4679 | | - | articles of incorporation be restored in the case of an expiration by |
|---|
| 4680 | | - | limitation and directing that the question of the revocation or H Sub for SENATE BILL No. 244—page 80 |
|---|
| 4681 | | - | restoration be submitted to a vote at a special meeting of stockholders. |
|---|
| 4682 | | - | (3) Notice of the special meeting of stockholders shall be given in |
|---|
| 4683 | | - | accordance with K.S.A. 17-6512, and amendments thereto, to each of |
|---|
| 4684 | | - | the stockholders. |
|---|
| 4685 | | - | (4) At the meeting, a vote of the stockholders shall be taken on a |
|---|
| 4686 | | - | resolution to revoke the dissolution in the case of a dissolution or to |
|---|
| 4687 | | - | restore the articles of incorporation in the case of an expiration by |
|---|
| 4688 | | - | limitation. If a majority of the stock of the corporation which that was |
|---|
| 4689 | | - | outstanding and entitled to vote upon a dissolution at the time of its |
|---|
| 4690 | | - | dissolution, in the case of a revocation of dissolution, or that was |
|---|
| 4691 | | - | outstanding and entitled to vote upon an amendment to the articles of |
|---|
| 4692 | | - | incorporation to change the period of the corporation's duration at the |
|---|
| 4693 | | - | time of its expiration by limitation, in the case of restoration, shall be |
|---|
| 4694 | | - | voted for the resolution, a certificate of revocation of dissolution or a |
|---|
| 4695 | | - | certificate of restoration shall be executed in accordance with K.S.A. |
|---|
| 4696 | | - | 2022 Supp. 17-7908 through 17-7910, and amendments thereto, which |
|---|
| 4697 | | - | and filed in accordance with K.S.A 2022 Supp. 17-7910, and |
|---|
| 4698 | | - | amendments thereto. Such certificate shall be specifically designated |
|---|
| 4699 | | - | as a certificate of revocation of dissolution or a certificate of |
|---|
| 4700 | | - | restoration in its heading and shall state: |
|---|
| 4701 | | - | (A) The name of the corporation; |
|---|
| 4702 | | - | (B) the postal address of the corporation's registered office in this |
|---|
| 4703 | | - | state, which shall be stated in accordance with K.S.A. 2022 Supp. 17- |
|---|
| 4704 | | - | 7924(c), and amendments thereto, and the name of its resident |
|---|
| 4705 | | - | agreement agent at such address; |
|---|
| 4706 | | - | (C) the names and respective postal addresses of its officers; |
|---|
| 4707 | | - | (D) the names and respective postal addresses of its directors; and |
|---|
| 4708 | | - | (E) that a majority of the stock of the corporation which that was |
|---|
| 4709 | | - | outstanding and entitled to vote upon a dissolution at the time of its |
|---|
| 4710 | | - | dissolution have voted in favor of a resolution to revoke the dissolution, |
|---|
| 4711 | | - | in the case of a revocation of dissolution, or that a majority of the stock |
|---|
| 4712 | | - | of the corporation that was outstanding and entitled to vote upon an |
|---|
| 4713 | | - | amendment to the articles of incorporation to change the period of the |
|---|
| 4714 | | - | corporation's duration at the time of its expiration by limitation, in the |
|---|
| 4715 | | - | case of a restoration, have voted in favor of a resolution to restore the |
|---|
| 4716 | | - | articles of incorporation; or that, if applicable, in lieu of a meeting and |
|---|
| 4717 | | - | vote of stockholders, the stockholders have given their written consent |
|---|
| 4718 | | - | to the revocation or restoration in accordance with K.S.A. 17-6518, |
|---|
| 4719 | | - | and amendments thereto; and |
|---|
| 4720 | | - | (F) in the case of a restoration, the new specified date limiting the |
|---|
| 4721 | | - | duration of the corporation's existence or that the corporation shall |
|---|
| 4722 | | - | have perpetual existence. |
|---|
| 4723 | | - | (b) Upon the effective time of filing in the office of the secretary of |
|---|
| 4724 | | - | state of the certificate of revocation of dissolution or the certificate of |
|---|
| 4725 | | - | restoration, the revocation of the dissolution or the restoration of the |
|---|
| 4726 | | - | corporation shall become effective and the corporation may again carry |
|---|
| 4727 | | - | on its business. |
|---|
| 4728 | | - | (c) Upon the filing of the certificate with the secretary of state to |
|---|
| 4729 | | - | which effectiveness of the revocation of the dissolution or the |
|---|
| 4730 | | - | restoration of the corporation as provided in subsection (b) refers, the |
|---|
| 4731 | | - | provisions of K.S.A. 17-6501(c), and amendments thereto, shall |
|---|
| 4732 | | - | govern, and the period of time the corporation was in dissolution or |
|---|
| 4733 | | - | was expired by limitation shall be included within the calculation of the |
|---|
| 4734 | | - | 30-day and 13-month periods to which K.S.A. 17-6501(c), and |
|---|
| 4735 | | - | amendments thereto, refers. An election of directors, however, may be |
|---|
| 4736 | | - | held at the special meeting of stockholders to which subsection (a) |
|---|
| 4737 | | - | refers, and in that event, that meeting of stockholders shall be deemed |
|---|
| 4738 | | - | an annual meeting of stockholders for purposes of K.S.A. 17-6501(c), |
|---|
| 4739 | | - | and amendments thereto. H Sub for SENATE BILL No. 244—page 81 |
|---|
| 4740 | | - | (d) If, after the dissolution became effective or after the |
|---|
| 4741 | | - | expiration by limitation, any other entity identified in K.S.A. 2022 |
|---|
| 4742 | | - | Supp. 17-7918, and amendments thereto, shall have adopted the same |
|---|
| 4743 | | - | name as the corporation, or shall have adopted a name so nearly similar |
|---|
| 4744 | | - | thereto as not to distinguish it from the corporation, or any foreign |
|---|
| 4745 | | - | covered entity shall have qualified to do business in this state under the |
|---|
| 4746 | | - | same name as the corporation or under a name so nearly similar thereto |
|---|
| 4747 | | - | as not to distinguish it from the corporation, then, in such case, the |
|---|
| 4748 | | - | corporation shall not be reinstated under the same name which that it |
|---|
| 4749 | | - | bore when its dissolution became effective or it expired by limitation, |
|---|
| 4750 | | - | but shall adopt and be reinstated or restored under some other name, |
|---|
| 4751 | | - | and in such case the certificate to be filed under this section shall set |
|---|
| 4752 | | - | forth the name borne by the corporation at the time its dissolution |
|---|
| 4753 | | - | became effective or it expired by limitation and the new name under |
|---|
| 4754 | | - | which the corporation is to be reinstated. |
|---|
| 4755 | | - | (e) Nothing in this section shall be construed to affect the |
|---|
| 4756 | | - | jurisdiction or power of the district court under K.S.A. 17-6808 and 17- |
|---|
| 4757 | | - | 6809, and amendments thereto. |
|---|
| 4758 | | - | (f) At any time prior to the expiration of three years following the |
|---|
| 4759 | | - | dissolution of a nonstock corporation pursuant to K.S.A. 17-6805, and |
|---|
| 4760 | | - | amendments thereto, or such longer period as the district court may |
|---|
| 4761 | | - | have directed pursuant to K.S.A. 17-6807, and amendments thereto, or, |
|---|
| 4762 | | - | at any time prior to the expiration of three years following the |
|---|
| 4763 | | - | expiration of the time limited for a nonstock corporation's existence as |
|---|
| 4764 | | - | provided in its articles of incorporation or such longer period as the |
|---|
| 4765 | | - | district court may have directed pursuant to K.S.A. 17-6807, and |
|---|
| 4766 | | - | amendments thereto, a nonstock corporation may revoke the dissolution |
|---|
| 4767 | | - | effected by it or restore its articles of incorporation after it has expired |
|---|
| 4768 | | - | by limitation in a manner analogous to that by which the dissolution |
|---|
| 4769 | | - | was authorized or, in the case of a restoration, in the manner in which |
|---|
| 4770 | | - | an amendment to the articles of incorporation to change the period of |
|---|
| 4771 | | - | the corporation's duration would have been authorized at the time of |
|---|
| 4772 | | - | its expiration by limitation, including: (1) If applicable, a vote of the |
|---|
| 4773 | | - | members entitled to vote, if any, on the dissolution or the amendment; |
|---|
| 4774 | | - | and (2) the filing of a certificate of revocation of dissolution or a |
|---|
| 4775 | | - | certificate of restoration containing information comparable to that |
|---|
| 4776 | | - | required by subsection (a)(4). Notwithstanding the foregoing |
|---|
| 4777 | | - | provisions of this subsection, only subsections (b), (d) and (e) shall |
|---|
| 4778 | | - | apply to nonstock corporations. |
|---|
| 4779 | | - | Sec. 41. K.S.A. 2022 Supp. 17-7002 is hereby amended to read as |
|---|
| 4780 | | - | follows: 17-7002. (a) As used in this section, the term: |
|---|
| 4781 | | - | (1) "Articles of incorporation" includes the articles of |
|---|
| 4782 | | - | incorporation of a corporation organized under any special act or any |
|---|
| 4783 | | - | law of this state; and |
|---|
| 4784 | | - | (2) "authority to engage in business" includes the registration of |
|---|
| 4785 | | - | any foreign corporation under K.S.A. 2022 Supp. 17-7931, and |
|---|
| 4786 | | - | amendments thereto. |
|---|
| 4787 | | - | (b) Except as provided further, any corporation may, at any time |
|---|
| 4788 | | - | before the expiration of the time limited for its existence and any |
|---|
| 4789 | | - | corporation whose articles of incorporation or authority to engage in |
|---|
| 4790 | | - | business has become forfeited or void pursuant to this code and any |
|---|
| 4791 | | - | corporation whose articles of incorporation or authority to engage in |
|---|
| 4792 | | - | business has expired by reason of failure to renew it or whose articles |
|---|
| 4793 | | - | of incorporation or authority to engage in business has been renewed |
|---|
| 4794 | | - | revived, but, through failure to comply strictly with the provisions of |
|---|
| 4795 | | - | this code, the validity of whose renewal revival has been brought into |
|---|
| 4796 | | - | question, at any time procure an extension, renewal or reinstatement a |
|---|
| 4797 | | - | revival of its articles of incorporation, if a domestic corporation, or its |
|---|
| 4798 | | - | authority to engage in business, if a foreign corporation, together with H Sub for SENATE BILL No. 244—page 82 |
|---|
| 4799 | | - | all the rights, franchises, privileges and immunities and subject to all of |
|---|
| 4800 | | - | its duties, debts and liabilities that had been secured or imposed by its |
|---|
| 4801 | | - | original articles of incorporation, and all amendments thereto, or by its |
|---|
| 4802 | | - | authority to engage in business, as the case may be, by complying with |
|---|
| 4803 | | - | the requirements of this section. This section shall not be applicable to |
|---|
| 4804 | | - | a corporation whose articles of incorporation have been revoked or |
|---|
| 4805 | | - | forfeited pursuant to K.S.A. 17-6812, and amendments thereto. |
|---|
| 4806 | | - | (c) The extension, renewal or reinstatement revival of the articles |
|---|
| 4807 | | - | of incorporation or authority to engage in business may be procured as |
|---|
| 4808 | | - | authorized by the board of directors or members of the governing body |
|---|
| 4809 | | - | of the corporation in accordance with subsection (h) and by executing |
|---|
| 4810 | | - | and filing a certificate of revival in accordance with K.S.A. 2022 Supp. |
|---|
| 4811 | | - | 17-7908 through 17-7910, and amendments thereto. |
|---|
| 4812 | | - | (d) The certificate required by subsection (c) shall state: |
|---|
| 4813 | | - | (1) The name date of filing of the corporation, which shall be the |
|---|
| 4814 | | - | existing corporation's original articles of incorporation, the name |
|---|
| 4815 | | - | under which the corporation was originally incorporated, the name of |
|---|
| 4816 | | - | the corporation or at the name it bore when time its articles of |
|---|
| 4817 | | - | incorporation or authority to engage in business expired, except as |
|---|
| 4818 | | - | provided in became forfeited or void pursuant to this code and the new |
|---|
| 4819 | | - | name under which the corporation is to be revived to the extent |
|---|
| 4820 | | - | required by subsection (f); |
|---|
| 4821 | | - | (2) the postal address of the corporation's registered office in this |
|---|
| 4822 | | - | state, which shall be stated in accordance with K.S.A. 2022 Supp. 17- |
|---|
| 4823 | | - | 7924(c), and amendments thereto, and the name of its resident agent at |
|---|
| 4824 | | - | such address; |
|---|
| 4825 | | - | (3) whether or not the renewal, or reinstatement is to be perpetual |
|---|
| 4826 | | - | and, if not perpetual, the time for which the renewal or reinstatement is |
|---|
| 4827 | | - | to continue and, in case of renewal before the expiration of the time |
|---|
| 4828 | | - | limited for its existence, the date when the renewal is to commence, |
|---|
| 4829 | | - | which shall be prior to the date of the expiration of the old articles of |
|---|
| 4830 | | - | incorporation or authority to engage in business which it is desired to |
|---|
| 4831 | | - | renew; |
|---|
| 4832 | | - | (4) that the corporation desiring to be renewed or reinstated |
|---|
| 4833 | | - | revived and so renewing or reinstating reviving its corporate existence |
|---|
| 4834 | | - | was duly organized under the laws of the state of its original |
|---|
| 4835 | | - | incorporation; |
|---|
| 4836 | | - | (5)(4) the date when the articles of incorporation or the authority |
|---|
| 4837 | | - | to engage in business would expire, if such is the case, or such other |
|---|
| 4838 | | - | facts as may show that the articles of incorporation or the authority to |
|---|
| 4839 | | - | engage in business has become became forfeited or void pursuant to |
|---|
| 4840 | | - | this code, or that the validity of any renewal revival has been brought |
|---|
| 4841 | | - | into question; and |
|---|
| 4842 | | - | (6)(5) that the certificate for reinstatement of revival is filed by |
|---|
| 4843 | | - | authority of those who were directors or members of the governing |
|---|
| 4844 | | - | body of the corporation at the time its articles of incorporation or the |
|---|
| 4845 | | - | authority to engage in business expired, or who were elected the board |
|---|
| 4846 | | - | of directors or members of the governing body of the corporation as |
|---|
| 4847 | | - | provided in accordance with subsection (h). |
|---|
| 4848 | | - | (e) Upon the filing of the certificate in accordance with K.S.A. |
|---|
| 4849 | | - | 2022 Supp. 17-7908 through 17-7910, and amendments thereto, the |
|---|
| 4850 | | - | corporation shall be renewed or reinstated revived with the same force |
|---|
| 4851 | | - | and effect as if its articles of incorporation or authority to engage in |
|---|
| 4852 | | - | business had not been forfeited or void pursuant to this code or had not |
|---|
| 4853 | | - | expired by limitation. Such reinstatement revival shall validate all |
|---|
| 4854 | | - | contracts, acts, matters and things made, done and performed within the |
|---|
| 4855 | | - | scope of its articles of incorporation or authority to engage in business |
|---|
| 4856 | | - | by the corporation, its directors or members of its governing body, |
|---|
| 4857 | | - | officers and, agents and stockholders or members during the time when H Sub for SENATE BILL No. 244—page 83 |
|---|
| 4858 | | - | its articles of incorporation or authority to engage in business was |
|---|
| 4859 | | - | forfeited or void pursuant to this code, or after their expiration by |
|---|
| 4860 | | - | limitation, with the same force and effect and to all intents and |
|---|
| 4861 | | - | purposes as if the articles of incorporation had at all times remained in |
|---|
| 4862 | | - | full force and effect. All real and personal property, rights and credits, |
|---|
| 4863 | | - | which that belonged to the corporation at the time its articles of |
|---|
| 4864 | | - | incorporation or authority to engage in business became forfeited or |
|---|
| 4865 | | - | void pursuant to this code, or expired by limitation and which that were |
|---|
| 4866 | | - | not disposed of prior to the time of its renewal or reinstatement shall be |
|---|
| 4867 | | - | vested in the corporation after its renewal or reinstatement, as fully and |
|---|
| 4868 | | - | amply as they were held by the corporation at and before the time its |
|---|
| 4869 | | - | articles of incorporation or authority to engage in business became |
|---|
| 4870 | | - | forfeited or void pursuant to this code, or expired by limitation, revival |
|---|
| 4871 | | - | and all real and personal property, rights and credits acquired by the |
|---|
| 4872 | | - | corporation after its renewal or reinstatement articles of incorporation |
|---|
| 4873 | | - | became forfeited or void pursuant to this code shall be vested in the |
|---|
| 4874 | | - | corporation, after its revival, as if its articles of incorporation had at |
|---|
| 4875 | | - | all times remained in full force and effect. The corporation after its |
|---|
| 4876 | | - | revival shall be as exclusively liable for all contracts, acts, matters and |
|---|
| 4877 | | - | things made, done or performed in its name and on its behalf by its |
|---|
| 4878 | | - | directors or members of its governing body, officers and, agents and |
|---|
| 4879 | | - | stockholders or members prior to its reinstatement revival, as if its |
|---|
| 4880 | | - | articles of incorporation or authority to engage in business had at all |
|---|
| 4881 | | - | times remained in full force and effect. |
|---|
| 4882 | | - | (f) If, since the articles of incorporation became forfeited or void |
|---|
| 4883 | | - | pursuant to this code, or expired by limitation, any other corporation |
|---|
| 4884 | | - | organized under the laws of this state shall have adopted the same name |
|---|
| 4885 | | - | as the corporation sought to be renewed or reinstated revived or shall |
|---|
| 4886 | | - | have adopted a name so nearly similar thereto as not to distinguish it |
|---|
| 4887 | | - | from the corporation to be renewed or reinstated revived, or any foreign |
|---|
| 4888 | | - | corporation registered in accordance with K.S.A. 2022 Supp. 17-7931, |
|---|
| 4889 | | - | and amendments thereto, shall have adopted the same name as the |
|---|
| 4890 | | - | corporation sought to be renewed or reinstated revived, or shall have |
|---|
| 4891 | | - | adopted a name so nearly similar thereto as not to distinguish it from |
|---|
| 4892 | | - | the corporation to be renewed or reinstated revived, then in such case |
|---|
| 4893 | | - | the corporation to be renewed or reinstated revived shall not be |
|---|
| 4894 | | - | renewed revived under the same name which that it bore when its |
|---|
| 4895 | | - | articles of incorporation became forfeited or void pursuant to this code |
|---|
| 4896 | | - | or expired, but shall adopt or be renewed be revived under some other |
|---|
| 4897 | | - | name; and in such case as set forth in the certificate to be filed under |
|---|
| 4898 | | - | the provisions of this section shall set forth the name borne by the |
|---|
| 4899 | | - | corporation at the time its articles of incorporation became forfeited or |
|---|
| 4900 | | - | void pursuant to this code, or expired and the new name under which |
|---|
| 4901 | | - | the corporation is to be renewed or reinstated pursuant to subsection |
|---|
| 4902 | | - | (c). |
|---|
| 4903 | | - | (g) Any corporation that renews or reinstates revives its articles of |
|---|
| 4904 | | - | incorporation or authority to engage in business under this code shall |
|---|
| 4905 | | - | file all past due business entity information reports for the immediately |
|---|
| 4906 | | - | preceding 10 years and pay to the secretary of state an amount equal to |
|---|
| 4907 | | - | all fees and any penalties thereon due. Nonprofit corporations shall file |
|---|
| 4908 | | - | only the business entity information reports for the most recent |
|---|
| 4909 | | - | reporting period and pay to the secretary of state an amount equal to all |
|---|
| 4910 | | - | fees due. |
|---|
| 4911 | | - | (h) If a sufficient number of the last acting officers of any |
|---|
| 4912 | | - | corporation desiring to renew or reinstate its articles of incorporation |
|---|
| 4913 | | - | are not available by reason of death, unknown address or refusal or |
|---|
| 4914 | | - | neglect to act, the directors of the corporation or those remaining on the |
|---|
| 4915 | | - | board, even if only one, may elect successors to such officersFor |
|---|
| 4916 | | - | purposes of this section the board of directors or governing body of the H Sub for SENATE BILL No. 244—page 84 |
|---|
| 4917 | | - | corporation shall be comprised of the persons, who, but for the articles |
|---|
| 4918 | | - | of incorporation having become forfeited or void pursuant to this code, |
|---|
| 4919 | | - | would be the duly elected or appointed directors or members of the |
|---|
| 4920 | | - | governing body of the corporation. The requirement for authorization |
|---|
| 4921 | | - | by the board of directors under subsection (c) shall be satisfied if a |
|---|
| 4922 | | - | majority of the directors or members of the governing body then in |
|---|
| 4923 | | - | office, even though less than a quorum, or the sole director or member |
|---|
| 4924 | | - | of the governing body then in office, authorizes the revival of the |
|---|
| 4925 | | - | articles of incorporation of the corporation and the filing of the |
|---|
| 4926 | | - | certificate required by subsection (c). In any case where there shall be |
|---|
| 4927 | | - | no directors of the corporation available for the purposes aforesaid |
|---|
| 4928 | | - | described in this subsection, the stockholders may elect a full board of |
|---|
| 4929 | | - | directors, as provided by the bylaws of the corporation, and the board |
|---|
| 4930 | | - | shall then elect such officers as are provided by law, by so elected may |
|---|
| 4931 | | - | then authorize the revival of the articles of incorporation or by the |
|---|
| 4932 | | - | bylaws to carry on the business and affairs of the corporation and the |
|---|
| 4933 | | - | filing of the certificate required by subsection (c). A special meeting of |
|---|
| 4934 | | - | the stockholders for the purposes purpose of electing directors may be |
|---|
| 4935 | | - | called by any officer, director or stockholder upon notice given in |
|---|
| 4936 | | - | accordance with K.S.A. 17-6512, and amendments thereto. For |
|---|
| 4937 | | - | purposes of this section, the bylaws shall be the bylaws of the |
|---|
| 4938 | | - | corporation that, but for the articles of incorporation having become |
|---|
| 4939 | | - | forfeited or void pursuant to this code, would be the duly adopted |
|---|
| 4940 | | - | bylaws of the corporation. |
|---|
| 4941 | | - | (i) After a reinstatement revival of the articles of incorporation of |
|---|
| 4942 | | - | the corporation shall have been effected, the provisions of K.S.A. 17- |
|---|
| 4943 | | - | 6501(c), and amendments thereto, shall govern and the period of time |
|---|
| 4944 | | - | during which the articles of incorporation of the corporation was |
|---|
| 4945 | | - | forfeited or void pursuant to this code, or after its expiration by |
|---|
| 4946 | | - | limitation, shall be included within the calculation of the 30-day and |
|---|
| 4947 | | - | 13-month periods to which K.S.A. 17-6501(c), and amendments |
|---|
| 4948 | | - | thereto, refers. A special meeting of stockholders held in accordance |
|---|
| 4949 | | - | with subsection (h) shall be deemed an annual meeting of the |
|---|
| 4950 | | - | stockholders for purposes of K.S.A. 17-6501(c), and amendments |
|---|
| 4951 | | - | thereto. |
|---|
| 4952 | | - | (j) Whenever it shall be desired to renew or reinstate revive the |
|---|
| 4953 | | - | articles of incorporation or authority to engage in business of any |
|---|
| 4954 | | - | nonstock corporation, the governing body shall perform all the acts |
|---|
| 4955 | | - | necessary for the renewal or reinstatement revival of the articles of |
|---|
| 4956 | | - | incorporation of the corporation or its authority to engage in business |
|---|
| 4957 | | - | which that are performed by the board of directors in the case of a |
|---|
| 4958 | | - | corporation having capital stock, and the members of any nonstock |
|---|
| 4959 | | - | corporation who are entitled to vote for the election of members of its |
|---|
| 4960 | | - | governing body and any other members entitled to vote for dissolution |
|---|
| 4961 | | - | under the articles of incorporation or bylaws of such corporation, shall |
|---|
| 4962 | | - | perform all the acts necessary for the renewal or reinstatement revival |
|---|
| 4963 | | - | of the articles of incorporation of the corporation or its authority to |
|---|
| 4964 | | - | engage in business which that are performed by the stockholders in the |
|---|
| 4965 | | - | case of a corporation having capital stock. In all other respects, the |
|---|
| 4966 | | - | procedure for the renewal or reinstatement revival of the articles of |
|---|
| 4967 | | - | incorporation or authority to engage in business of a nonstock |
|---|
| 4968 | | - | corporation shall conform, as nearly as may be applicable, to the |
|---|
| 4969 | | - | procedure prescribed in this section for the renewal or revival of the |
|---|
| 4970 | | - | articles of incorporation of a corporation having capital stock, except |
|---|
| 4971 | | - | that subsection (i) shall not apply to nonstock corporations. |
|---|
| 4972 | | - | Sec. 42. K.S.A. 2022 Supp. 17-7003 is hereby amended to read as |
|---|
| 4973 | | - | follows: 17-7003. Any corporation desiring to renew, restore, revive, |
|---|
| 4974 | | - | extend and continue its corporate existence, shall, upon complying with |
|---|
| 4975 | | - | the provisions of K.S.A. 17-7002 article 70 of chapter 17 of the Kansas H Sub for SENATE BILL No. 244—page 85 |
|---|
| 4976 | | - | Statutes Annotated, and amendments thereto, continue for the time |
|---|
| 4977 | | - | stated as provided in its certificate of renewal effecting such action, as a |
|---|
| 4978 | | - | corporation and shall, in addition to the rights, privileges and |
|---|
| 4979 | | - | immunities conferred by its articles of incorporation, possess and enjoy |
|---|
| 4980 | | - | all the benefits of this code, which that are applicable to the nature of |
|---|
| 4981 | | - | its business, and shall be subject to the restrictions and liabilities by this |
|---|
| 4982 | | - | code imposed on such corporations. |
|---|
| 4983 | | - | Sec. 43. K.S.A. 2022 Supp. 17-72a04 is hereby amended to read |
|---|
| 4984 | | - | as follows: 17-72a04. Any stock certificate issued by a public benefit |
|---|
| 4985 | | - | corporation shall note conspicuously that the corporation is a public |
|---|
| 4986 | | - | benefit corporation formed pursuant to K.S.A. 2022 Supp. 17-72a01 |
|---|
| 4987 | | - | through 17-72a09, and amendments thereto. Any notice sent given by a |
|---|
| 4988 | | - | public benefit corporation pursuant to K.S.A. 17-6401(f), and |
|---|
| 4989 | | - | amendments thereto, shall state conspicuously that the corporation is a |
|---|
| 4990 | | - | public benefit corporation formed pursuant to K.S.A. 2022 Supp. 17- |
|---|
| 4991 | | - | 72a01 through 17-72a09, and amendments thereto. |
|---|
| 4992 | | - | Sec. 44. K.S.A. 2022 Supp. 17-72a05 is hereby amended to read |
|---|
| 4993 | | - | as follows: 17-72a05. (a) The board of directors shall manage or direct |
|---|
| 4994 | | - | the business and affairs of the public benefit corporation in a manner |
|---|
| 4995 | | - | that balances the pecuniary interests of the stockholders, the best |
|---|
| 4996 | | - | interests of those materially affected by the corporation's conduct and |
|---|
| 4997 | | - | the specific public benefit or public benefits identified in its articles of |
|---|
| 4998 | | - | incorporation. |
|---|
| 4999 | | - | (b) A director of a public benefit corporation shall not, by virtue of |
|---|
| 5000 | | - | the public benefit provisions or K.S.A. 2022 Supp. 17-72a02(a), and |
|---|
| 5001 | | - | amendments thereto, have any duty to any person on account of any |
|---|
| 5002 | | - | interest of such person in the public benefit or public benefits identified |
|---|
| 5003 | | - | in the articles of incorporation or on account of any interest materially |
|---|
| 5004 | | - | affected by the corporation's conduct and, with respect to a decision |
|---|
| 5005 | | - | implicating the balance balancing requirement in subsection (a), will be |
|---|
| 5006 | | - | deemed to satisfy such director's fiduciary duties to stockholders and |
|---|
| 5007 | | - | the corporation if such director's decision is both informed and |
|---|
| 5008 | | - | disinterested and not such that no person of ordinary, sound judgment |
|---|
| 5009 | | - | would approve. |
|---|
| 5010 | | - | (c) The articles of incorporation of a public benefit corporation |
|---|
| 5011 | | - | may include a provision that any disinterested failure to satisfy this |
|---|
| 5012 | | - | section shall notA director's ownership of or other interest in the stock |
|---|
| 5013 | | - | of the public benefit corporation shall not alone, for the purposes of |
|---|
| 5014 | | - | this section, create a conflict of interest on the part of the director with |
|---|
| 5015 | | - | respect to the director's decision implicating the balancing requirement |
|---|
| 5016 | | - | in subsection (a), except to the extent that such ownership or interest |
|---|
| 5017 | | - | would create a conflict of interest if the corporation were not a public |
|---|
| 5018 | | - | benefit corporation. In the absence of a conflict of interest, no failure to |
|---|
| 5019 | | - | satisfy that balancing requirement shall, for the purposes of K.S.A. 17- |
|---|
| 5020 | | - | 6002(b)(8) or 17-6305, and amendments thereto, constitute an act or |
|---|
| 5021 | | - | omission not in good faith, or a breach of the duty of loyalty unless the |
|---|
| 5022 | | - | articles of incorporation so provide. |
|---|
| 5023 | | - | Sec. 45. K.S.A. 2022 Supp. 17-72a07 is hereby amended to read |
|---|
| 5024 | | - | as follows: 17-72a07. Stockholders of a public benefit corporation |
|---|
| 5025 | | - | owningAny action to enforce the balancing requirement of K.S.A. 17- |
|---|
| 5026 | | - | 72a05(a), and amendments thereto, including any individual, |
|---|
| 5027 | | - | derivative, or any other type of action, shall not be brought unless the |
|---|
| 5028 | | - | plaintiffs in such action own individually or collectively, as of the date |
|---|
| 5029 | | - | of instituting such derivative suit the action is instituted, at least 2% of |
|---|
| 5030 | | - | the corporation's outstanding shares or, in the case of a corporation with |
|---|
| 5031 | | - | shares listed on a national securities exchange, the lesser of such |
|---|
| 5032 | | - | percentage or shares of the corporation with a market value of at least |
|---|
| 5033 | | - | $2,000,000 in market value, may maintain a derivative lawsuit to |
|---|
| 5034 | | - | enforce the requirements set forth in K.S.A. 2022 Supp. 17-72a05(a), H Sub for SENATE BILL No. 244—page 86 |
|---|
| 5035 | | - | and amendments thereto as of the date the action is instituted. This |
|---|
| 5036 | | - | section shall not relieve the plaintiffs from complying with any other |
|---|
| 5037 | | - | conditions applicable to filing a derivative action including K.S.A. 60- |
|---|
| 5038 | | - | 223a(b)(1), and amendments thereto, and any rules of the court where |
|---|
| 5039 | | - | the action is filed. |
|---|
| 5040 | | - | Sec. 46. K.S.A. 2022 Supp. 17-7302 is hereby amended to read as |
|---|
| 5041 | | - | follows: 17-7302. (a) Whenever any foreign corporation admitted to do |
|---|
| 5042 | | - | business in this state is a party to a merger or consolidation with any |
|---|
| 5043 | | - | other foreign corporation, whether or not admitted to do business in this |
|---|
| 5044 | | - | state, such foreign corporation shall file with the secretary of state of |
|---|
| 5045 | | - | this state, within 30 days after the time the merger or consolidation |
|---|
| 5046 | | - | becomes effective, a certificate of the proper officer of the jurisdiction |
|---|
| 5047 | | - | under the laws of which the merger or consolidation was effected, |
|---|
| 5048 | | - | attesting to such merger or consolidation and, or a form prescribed by |
|---|
| 5049 | | - | the secretary of state of this state, in each case stating: |
|---|
| 5050 | | - | (1) The corporate parties thereto; |
|---|
| 5051 | | - | (2) the jurisdiction of incorporation of each corporate party; |
|---|
| 5052 | | - | (3) the time when such merger or consolidation became effective; |
|---|
| 5053 | | - | and |
|---|
| 5054 | | - | (3)(4) that the resulting or surviving corporation is a corporation |
|---|
| 5055 | | - | in good standing in such jurisdiction. |
|---|
| 5056 | | - | (b) Whenever any foreign corporation admitted to do business in |
|---|
| 5057 | | - | this state shall amend its articles of incorporation in a manner which |
|---|
| 5058 | | - | that affects any of the information contained on such corporation's |
|---|
| 5059 | | - | application to do business in Kansas, the corporation shall file with the |
|---|
| 5060 | | - | secretary of state, within 30 days after the amendment is adopted, a |
|---|
| 5061 | | - | certificate of the proper officer of the jurisdiction in which such |
|---|
| 5062 | | - | corporation has been incorporated attesting to such amendment. In the |
|---|
| 5063 | | - | alternative, any foreign corporation may amend its original application |
|---|
| 5064 | | - | for authority to do business in Kansas by filing a certificate of |
|---|
| 5065 | | - | amendment certifying that such amendment has been duly adopted and |
|---|
| 5066 | | - | executed in accordance with K.S.A. 2022 Supp. 17-7908 through 17- |
|---|
| 5067 | | - | 7910, and amendments thereto. |
|---|
| 5068 | | - | Sec. 47. K.S.A. 2022 Supp. 17-7503 is hereby amended to read as |
|---|
| 5069 | | - | follows: 17-7503.(a) Every domestic corporation organized for profit |
|---|
| 5070 | | - | shall make a written business entity information report to the secretary |
|---|
| 5071 | | - | of state, stating the prescribed information concerning the corporation |
|---|
| 5072 | | - | at the close of business on the last day of its tax period next preceding |
|---|
| 5073 | | - | the date of filing, but if a corporation's tax period is other than the |
|---|
| 5074 | | - | calendar year, it shall give notice thereof to the secretary of state prior |
|---|
| 5075 | | - | to December 31 of the year it commences such tax period. |
|---|
| 5076 | | - | (b) The report shall be made on forms prescribed by the secretary |
|---|
| 5077 | | - | of state and shall be filed biennially, as determined by the year that the |
|---|
| 5078 | | - | domestic corporation filed its formation documents. A domestic |
|---|
| 5079 | | - | corporation that filed formation documents in an even-numbered year |
|---|
| 5080 | | - | shall file a report in each even-numbered year. A domestic corporation |
|---|
| 5081 | | - | that filed formation documents in an odd-numbered year shall file a |
|---|
| 5082 | | - | report in each odd-numbered year. The report shall be filed after the |
|---|
| 5083 | | - | close of the corporation's tax period but not later than at the time |
|---|
| 5084 | | - | prescribed by law for filing the corporation's annual Kansas income tax |
|---|
| 5085 | | - | return. |
|---|
| 5086 | | - | (c) The report shall contain the following information: |
|---|
| 5087 | | - | (1) The name of the corporation; |
|---|
| 5088 | | - | (2) the location of the principal office, including the building and |
|---|
| 5089 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 5090 | | - | state and zip code; |
|---|
| 5091 | | - | (3) the names and addresses of name and postal address for the |
|---|
| 5092 | | - | president, secretary, treasurer or equivalent of such officers and |
|---|
| 5093 | | - | members of the board of directors; H Sub for SENATE BILL No. 244—page 87 |
|---|
| 5094 | | - | (4) the number of shares of capital stock issued; |
|---|
| 5095 | | - | (5) the nature and kind of business in which the corporation is |
|---|
| 5096 | | - | engaged; and |
|---|
| 5097 | | - | (6)(5) if the corporation is a parent corporation holding more than |
|---|
| 5098 | | - | 50% equity ownership in any other business entity registered with the |
|---|
| 5099 | | - | secretary of state, the name and identification number of any such |
|---|
| 5100 | | - | subsidiary business entity. |
|---|
| 5101 | | - | (d) Every corporation subject to the provisions of this section that |
|---|
| 5102 | | - | holds agricultural land, as defined in K.S.A. 17-5903, and amendments |
|---|
| 5103 | | - | thereto, within this state shall show the following additional |
|---|
| 5104 | | - | information on the report: |
|---|
| 5105 | | - | (1) The acreage and location listed by section, range, township |
|---|
| 5106 | | - | and county of each lot, tract or parcel of agricultural land in this state |
|---|
| 5107 | | - | owned or leased by or to the corporation; |
|---|
| 5108 | | - | (2) the purposes for which such agricultural land is owned or |
|---|
| 5109 | | - | leased and, if leased, to whom such agricultural land is leased; |
|---|
| 5110 | | - | (3) the value of the nonagricultural assets and the agricultural |
|---|
| 5111 | | - | assets, stated separately, owned and controlled by the corporation both |
|---|
| 5112 | | - | within and without the state of Kansas and where situated; |
|---|
| 5113 | | - | (4) the total number of stockholders of the corporation; |
|---|
| 5114 | | - | (5) the number of acres owned or operated by the corporation, the |
|---|
| 5115 | | - | number of acres leased by the corporation and the number of acres |
|---|
| 5116 | | - | leased to the corporation; |
|---|
| 5117 | | - | (6) the number of acres of agricultural land, held and reported in |
|---|
| 5118 | | - | each category under paragraph (5), stated separately, being irrigated; |
|---|
| 5119 | | - | and |
|---|
| 5120 | | - | (7) whether any of the agricultural land held and reported under |
|---|
| 5121 | | - | this subsection was acquired after July 1, 1981. |
|---|
| 5122 | | - | (e) The report shall be executed in accordance with the provisions |
|---|
| 5123 | | - | of K.S.A. 2022 Supp. 17-7908 through 17-7910, and amendments |
|---|
| 5124 | | - | thereto. The official title or position of the individual signing the report |
|---|
| 5125 | | - | shall be designated. The fact that an individual's name is signed on such |
|---|
| 5126 | | - | report shall be prima facie evidence that such individual is authorized |
|---|
| 5127 | | - | to sign the report on behalf of the corporation. This report shall be |
|---|
| 5128 | | - | subscribed by the person as true, under penalty of perjury. |
|---|
| 5129 | | - | (f) At the time of filing its business entity information report it |
|---|
| 5130 | | - | shall be the duty of each domestic corporation organized for profit to |
|---|
| 5131 | | - | pay to the secretary of state a fee in an amount equal to $80, plus the |
|---|
| 5132 | | - | amount specified in rules and regulations of the secretary multiplied by |
|---|
| 5133 | | - | the number of tax periods included in the report. |
|---|
| 5134 | | - | Sec. 48. K.S.A. 2022 Supp. 17-7504 is hereby amended to read as |
|---|
| 5135 | | - | follows: 17-7504. (a) Every corporation organized not for profit shall |
|---|
| 5136 | | - | make a written business entity information report to the secretary of |
|---|
| 5137 | | - | state, stating the prescribed information concerning the corporation at |
|---|
| 5138 | | - | the close of business on the last day of its tax period next preceding the |
|---|
| 5139 | | - | date of filing, but if a corporation's tax period is other than the calendar |
|---|
| 5140 | | - | year, it shall give notice thereof to the secretary of state prior to |
|---|
| 5141 | | - | December 31 of the year it commences such tax period. |
|---|
| 5142 | | - | (b) The report shall be made on forms prescribed by the secretary |
|---|
| 5143 | | - | of state and shall be filed biennially, as determined by the year that the |
|---|
| 5144 | | - | corporation organized not for profit filed its formation documents. A |
|---|
| 5145 | | - | corporation organized not for profit that filed formation documents in |
|---|
| 5146 | | - | an even-numbered year shall file a report in each even-numbered year. |
|---|
| 5147 | | - | A corporation organized not for profit that filed formation documents in |
|---|
| 5148 | | - | an odd-numbered year shall file a report in each odd-numbered year. |
|---|
| 5149 | | - | The report shall be filed after the close of the corporation's tax period |
|---|
| 5150 | | - | but not later than on the 15 |
|---|
| 5151 | | - | th |
|---|
| 5152 | | - | day of the sixth month following the close |
|---|
| 5153 | | - | of the taxable year. |
|---|
| 5154 | | - | (c) The report shall contain the following information: H Sub for SENATE BILL No. 244—page 88 |
|---|
| 5155 | | - | (1) The name of the corporation; |
|---|
| 5156 | | - | (2) the location of the principal office, including the building and |
|---|
| 5157 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 5158 | | - | state and zip code; |
|---|
| 5159 | | - | (3) the names and addresses of name and postal address for the |
|---|
| 5160 | | - | president, secretary and treasurer or equivalent of such officers, and the |
|---|
| 5161 | | - | members of the governing body; and |
|---|
| 5162 | | - | (4) the number of memberships or the number of shares of capital |
|---|
| 5163 | | - | stock issued; and |
|---|
| 5164 | | - | (5) if the corporation is a parent corporation holding more than |
|---|
| 5165 | | - | 50% equity ownership in any other business entity registered with the |
|---|
| 5166 | | - | secretary of state, the name and identification number of any such |
|---|
| 5167 | | - | subsidiary business entity. |
|---|
| 5168 | | - | (d) Every corporation subject to the provisions of this section that |
|---|
| 5169 | | - | holds agricultural land, as defined in K.S.A. 17-5903, and amendments |
|---|
| 5170 | | - | thereto, within this state shall show the following additional |
|---|
| 5171 | | - | information on the report: |
|---|
| 5172 | | - | (1) The acreage and location listed by section, range, township |
|---|
| 5173 | | - | and county of each lot, tract or parcel of agricultural land in this state |
|---|
| 5174 | | - | owned or leased by or to the corporation; |
|---|
| 5175 | | - | (2) the purposes for which such agricultural land is owned or |
|---|
| 5176 | | - | leased and, if leased, to whom such agricultural land is leased; |
|---|
| 5177 | | - | (3) the value of the nonagricultural assets and the agricultural |
|---|
| 5178 | | - | assets, stated separately, owned and controlled by the corporation both |
|---|
| 5179 | | - | within and without the state of Kansas and where situated; |
|---|
| 5180 | | - | (4) the total number of stockholders or members of the |
|---|
| 5181 | | - | corporation; |
|---|
| 5182 | | - | (5) the number of acres owned or operated by the corporation, the |
|---|
| 5183 | | - | number of acres leased by the corporation and the number of acres |
|---|
| 5184 | | - | leased to the corporation; |
|---|
| 5185 | | - | (6) the number of acres of agricultural land, held and reported in |
|---|
| 5186 | | - | each category under paragraph (5), stated separately, being irrigated; |
|---|
| 5187 | | - | and |
|---|
| 5188 | | - | (7) whether any of the agricultural land held and reported under |
|---|
| 5189 | | - | this subsection was acquired after July 1, 1981. |
|---|
| 5190 | | - | (e) The report shall be executed in accordance with the provisions |
|---|
| 5191 | | - | of K.S.A. 2022 Supp. 17-7908 through 17-7910, and amendments |
|---|
| 5192 | | - | thereto. The official title or position of the individual signing the report |
|---|
| 5193 | | - | shall be designated. The fact that an individual's name is signed on such |
|---|
| 5194 | | - | report shall be prima facie evidence that such individual is authorized |
|---|
| 5195 | | - | to sign the report on behalf of the corporation. This report shall be |
|---|
| 5196 | | - | subscribed by the person as true, under penalty of perjury. |
|---|
| 5197 | | - | (f) At the time of filing its business entity information report, each |
|---|
| 5198 | | - | nonprofit corporation shall pay a fee in an amount equal to $80, plus |
|---|
| 5199 | | - | the amount specified in rules and regulations of the secretary multiplied |
|---|
| 5200 | | - | by the number of tax periods included in the report. |
|---|
| 5201 | | - | Sec. 49. K.S.A. 2022 Supp. 17-7505 is hereby amended to read as |
|---|
| 5202 | | - | follows: 17-7505. (a) Every foreign corporation organized for profit, or |
|---|
| 5203 | | - | organized under the cooperative type statutes of the state, territory or |
|---|
| 5204 | | - | foreign country of incorporation, now or hereafter doing business in |
|---|
| 5205 | | - | this state, and owning or using a part or all of its capital in this state, |
|---|
| 5206 | | - | and subject to compliance with the laws relating to the admission of |
|---|
| 5207 | | - | foreign corporations to do business in Kansas, shall make a written |
|---|
| 5208 | | - | business entity information report to the secretary of state, stating the |
|---|
| 5209 | | - | prescribed information concerning the corporation at the close of |
|---|
| 5210 | | - | business on the last day of its tax period next preceding the date of |
|---|
| 5211 | | - | filing, but if a corporation operates on a fiscal year other than the |
|---|
| 5212 | | - | calendar year it shall give written notice thereof to the secretary of state |
|---|
| 5213 | | - | prior to December 31 of the year commencing such fiscal year. H Sub for SENATE BILL No. 244—page 89 |
|---|
| 5214 | | - | (b) The report shall be made on a form prescribed by the secretary |
|---|
| 5215 | | - | of state and shall be filed biennially, as determined by the year that the |
|---|
| 5216 | | - | foreign corporation filed its foreign corporation application in Kansas. |
|---|
| 5217 | | - | A foreign corporation that filed an application in an even-numbered |
|---|
| 5218 | | - | year shall file a report in each even-numbered year. A foreign |
|---|
| 5219 | | - | corporation that filed an application in an odd-numbered year shall file |
|---|
| 5220 | | - | a report in each odd-numbered year. The report shall be filed after the |
|---|
| 5221 | | - | close of the corporation's tax period but not later than at the time |
|---|
| 5222 | | - | prescribed by law for filing the corporation's annual Kansas income tax |
|---|
| 5223 | | - | return. |
|---|
| 5224 | | - | (c) The report shall contain the following information: |
|---|
| 5225 | | - | (1) The name of the corporation and under the laws of what state |
|---|
| 5226 | | - | or country it is incorporated; |
|---|
| 5227 | | - | (2) the location of its principal office, including the building and |
|---|
| 5228 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 5229 | | - | state and zip code; |
|---|
| 5230 | | - | (3) the names and addresses of name and postal address for the |
|---|
| 5231 | | - | president, secretary, treasurer, or equivalent of such officers, and |
|---|
| 5232 | | - | members of the board of directors; |
|---|
| 5233 | | - | (4) the number of shares of capital stock issued; |
|---|
| 5234 | | - | (5) the nature and kind of business in which the company is |
|---|
| 5235 | | - | engaged; and |
|---|
| 5236 | | - | (6)(5) if the corporation is a parent corporation holding more than |
|---|
| 5237 | | - | 50% equity ownership in any other business entity registered with the |
|---|
| 5238 | | - | secretary of state, the name and identification number of any such |
|---|
| 5239 | | - | subsidiary business entity. |
|---|
| 5240 | | - | (d) Every corporation subject to the provisions of this section that |
|---|
| 5241 | | - | holds agricultural land, as defined in K.S.A. 17-5903, and amendments |
|---|
| 5242 | | - | thereto, within this state shall show the following additional |
|---|
| 5243 | | - | information on the report: |
|---|
| 5244 | | - | (1) The acreage and location listed by section, range, township |
|---|
| 5245 | | - | and county of each lot, tract or parcel of agricultural land in this state |
|---|
| 5246 | | - | owned or leased by or to the corporation; |
|---|
| 5247 | | - | (2) the purposes for which such agricultural land is owned or |
|---|
| 5248 | | - | leased and, if leased, to whom such agricultural land is leased; |
|---|
| 5249 | | - | (3) the value of the nonagricultural assets and the agricultural |
|---|
| 5250 | | - | assets, stated separately, owned and controlled by the corporation both |
|---|
| 5251 | | - | within and without the state of Kansas and where situated; |
|---|
| 5252 | | - | (4) the total number of stockholders of the corporation; |
|---|
| 5253 | | - | (5) the number of acres owned or operated by the corporation, the |
|---|
| 5254 | | - | number of acres leased by the corporation and the number of acres |
|---|
| 5255 | | - | leased to the corporation; |
|---|
| 5256 | | - | (6) the number of acres of agricultural land, held and reported in |
|---|
| 5257 | | - | each category under paragraph (5), stated separately, being irrigated; |
|---|
| 5258 | | - | and |
|---|
| 5259 | | - | (7) whether any of the agricultural land held and reported under |
|---|
| 5260 | | - | this subsection was acquired after July 1, 1981. |
|---|
| 5261 | | - | (e) The report shall be executed in accordance with the provisions |
|---|
| 5262 | | - | of K.S.A. 2022 Supp. 17-7908 through 17-7910, and amendments |
|---|
| 5263 | | - | thereto. The official title or position of the individual signing the report |
|---|
| 5264 | | - | shall be designated. The fact that an individual's name is signed on such |
|---|
| 5265 | | - | report shall be prima facie evidence that such individual is authorized |
|---|
| 5266 | | - | to sign the report on behalf of the corporation. This report shall be |
|---|
| 5267 | | - | subscribed by the person as true, under penalty of perjury. |
|---|
| 5268 | | - | (f) At the time of filing its business entity information report, each |
|---|
| 5269 | | - | such foreign corporation shall pay to the secretary of state a fee in an |
|---|
| 5270 | | - | amount equal to $80, plus the amount specified in rules and regulations |
|---|
| 5271 | | - | of the secretary multiplied by the number of tax periods included in the |
|---|
| 5272 | | - | report. H Sub for SENATE BILL No. 244—page 90 |
|---|
| 5273 | | - | Sec. 50. K.S.A. 2022 Supp. 17-7506 is hereby amended to read as |
|---|
| 5274 | | - | follows: 17-7506. (a) The secretary of state shall charge each |
|---|
| 5275 | | - | corporation a fee established pursuant to rules and regulations, but not |
|---|
| 5276 | | - | exceeding $250, for issuing or filing and indexing articles of |
|---|
| 5277 | | - | incorporation of a for-profit or a foreign corporation application. |
|---|
| 5278 | | - | (b) The secretary of state shall charge each corporation a fee |
|---|
| 5279 | | - | established by rules and regulations, but not exceeding $50, for articles |
|---|
| 5280 | | - | of incorporation of a nonprofit corporation. |
|---|
| 5281 | | - | (c) The secretary of state shall charge each corporation a fee |
|---|
| 5282 | | - | established by rules and regulations, but not exceeding $150, for |
|---|
| 5283 | | - | issuing or filing and indexing any of the corporate documents described |
|---|
| 5284 | | - | below: |
|---|
| 5285 | | - | (1) Certificate of extension, revocation of dissolution, restoration, |
|---|
| 5286 | | - | renewal or revival of articles of incorporation; |
|---|
| 5287 | | - | (2) certificate of amendment of articles of incorporation, either |
|---|
| 5288 | | - | prior to or after payment of capital; |
|---|
| 5289 | | - | (3) certificate of designation of preferences; |
|---|
| 5290 | | - | (4) certificate of retirement of preferred stock; |
|---|
| 5291 | | - | (5) certificate of increase or reduction of capital; |
|---|
| 5292 | | - | (6) certificate of dissolution, either prior to or after beginning |
|---|
| 5293 | | - | business; |
|---|
| 5294 | | - | (7) certificate of revocation of voluntary dissolution; |
|---|
| 5295 | | - | (8) certificate of change of location of registered office and |
|---|
| 5296 | | - | resident agent; |
|---|
| 5297 | | - | (9) certificate of merger or consolidation or agreement of merger |
|---|
| 5298 | | - | or consolidation; |
|---|
| 5299 | | - | (10) certificate of ownership and merger; |
|---|
| 5300 | | - | (11) certificate of extension, restoration, renewal or revival of a |
|---|
| 5301 | | - | certificate of authority of foreign corporation to do business in Kansas; |
|---|
| 5302 | | - | (12) change of resident agent or amendment by foreign |
|---|
| 5303 | | - | corporation; |
|---|
| 5304 | | - | (13) certificate of withdrawal of foreign corporation; |
|---|
| 5305 | | - | (14) certificate of correction of any of the instruments designated |
|---|
| 5306 | | - | in this section; |
|---|
| 5307 | | - | (15) reservation of corporate name; |
|---|
| 5308 | | - | (16) restated articles of incorporation; |
|---|
| 5309 | | - | (17) extension of a business entity information report; and |
|---|
| 5310 | | - | (18) certificate of validation. |
|---|
| 5311 | | - | (d) The secretary of state shall charge each corporation a fee |
|---|
| 5312 | | - | established pursuant to rules and regulations but not exceeding $50 for |
|---|
| 5313 | | - | issuing certified copies, photocopies, certificates of good standing and |
|---|
| 5314 | | - | certificates of fact; and any other certificate or filing for which a filing |
|---|
| 5315 | | - | or indexing fee is not prescribed by law. |
|---|
| 5316 | | - | (e) The secretary of state shall not charge fees for providing the |
|---|
| 5317 | | - | following information: Name of the corporation; postal address of its |
|---|
| 5318 | | - | registered office and the name of its resident agent; the amount of its |
|---|
| 5319 | | - | authorized capital stock; the state of its incorporation; date of filing of |
|---|
| 5320 | | - | articles of incorporation, foreign corporation application or business |
|---|
| 5321 | | - | entity information report; and date of expiration. |
|---|
| 5322 | | - | (f) The secretary of state shall prescribe by rules and regulations |
|---|
| 5323 | | - | any fees required by this act. |
|---|
| 5324 | | - | Sec. 51. K.S.A. 2022 Supp. 17-76,136 is hereby amended to read |
|---|
| 5325 | | - | as follows: 17-76,136. (a) The secretary of state shall charge each |
|---|
| 5326 | | - | domestic and foreign limited liability company the following fees: |
|---|
| 5327 | | - | (1) A fee of $20 for issuing or filing and indexing any of the |
|---|
| 5328 | | - | following documents: |
|---|
| 5329 | | - | (A) A certificate of amendment of articles of organization; |
|---|
| 5330 | | - | (B) restated articles of organization; |
|---|
| 5331 | | - | (C) a certificate of cancellation, which fee shall be multiplied by H Sub for SENATE BILL No. 244—page 91 |
|---|
| 5332 | | - | the number of series of the limited liability company named in the |
|---|
| 5333 | | - | certificate of cancellation; |
|---|
| 5334 | | - | (D) a certificate of change of location of registered office or |
|---|
| 5335 | | - | resident agent; |
|---|
| 5336 | | - | (E) a certificate of merger or consolidation; |
|---|
| 5337 | | - | (F) a certificate of division; and |
|---|
| 5338 | | - | (G) any certificate, affidavit, agreement or any other paper |
|---|
| 5339 | | - | provided for in the Kansas revised limited liability company act, for |
|---|
| 5340 | | - | which no different fee is specifically prescribed; |
|---|
| 5341 | | - | (2) a fee of $7.50 for each certified copy plus a fee per page, if, |
|---|
| 5342 | | - | regardless of whether the secretary of state supplies the copies, in an |
|---|
| 5343 | | - | amount fixed by the secretary of state and approved by the director of |
|---|
| 5344 | | - | accounts and reports for copies of corporate documents under K.S.A. |
|---|
| 5345 | | - | 45-204, and amendments thereto copy; |
|---|
| 5346 | | - | (3) a fee of $7.50 for each certificate of good standing, including a |
|---|
| 5347 | | - | certificate of good standing for a series of a limited liability company, |
|---|
| 5348 | | - | and certificate of fact issued by the secretary of state; |
|---|
| 5349 | | - | (4) a fee of $5 for a report of record search, but furnishing the |
|---|
| 5350 | | - | following information shall not be considered a record search and no |
|---|
| 5351 | | - | charge shall be made therefor: Name of the limited liability company |
|---|
| 5352 | | - | and the postal address of its registered office; name and postal address |
|---|
| 5353 | | - | of the resident agent; the state of the limited liability company's |
|---|
| 5354 | | - | formation; the date of filing of its articles of organization or business |
|---|
| 5355 | | - | entity information report; and date of expiration; and |
|---|
| 5356 | | - | (5) a fee of $20 for photocopies of instruments a copy of an |
|---|
| 5357 | | - | instrument on file or prepared by the secretary of state's office and |
|---|
| 5358 | | - | which are not, whether or not the copy is certified, a fee per page in an |
|---|
| 5359 | | - | amount fixed by the secretary of state and approved by the director of |
|---|
| 5360 | | - | accounts and reports for copies of corporate documents under K.S.A. |
|---|
| 5361 | | - | 45-204, and amendments thereto. |
|---|
| 5362 | | - | (b) Every limited liability company hereafter formed in this state |
|---|
| 5363 | | - | shall pay to the secretary of state, at the time of filing its articles of |
|---|
| 5364 | | - | organization, an application and recording fee of $150. |
|---|
| 5365 | | - | (c) At the time of filing its application to do business, every |
|---|
| 5366 | | - | foreign limited liability company shall pay to the secretary of state an |
|---|
| 5367 | | - | application and recording fee of $150. |
|---|
| 5368 | | - | (d) The fee for filing a certificate of reinstatement shall be the |
|---|
| 5369 | | - | same as that prescribed by K.S.A. 17-7506, and amendments thereto, |
|---|
| 5370 | | - | for filing a certificate of reinstatement of a corporation's articles of |
|---|
| 5371 | | - | incorporation. |
|---|
| 5372 | | - | Sec. 52. K.S.A. 2022 Supp. 17-76,139 is hereby amended to read |
|---|
| 5373 | | - | as follows: 17-76,139. (a) Every limited liability company organized |
|---|
| 5374 | | - | and on and after July 1, 2020, each series thereof formed or in |
|---|
| 5375 | | - | existence under the laws of this state shall make a written business |
|---|
| 5376 | | - | entity information report to the secretary of state, stating the prescribed |
|---|
| 5377 | | - | information concerning the limited liability company or series, as |
|---|
| 5378 | | - | applicable, at the close of business on the last day of its tax period next |
|---|
| 5379 | | - | preceding the date of filing. If the limited liability company's or series' |
|---|
| 5380 | | - | tax period is other than the calendar year, it shall give notice of its |
|---|
| 5381 | | - | different tax period in writing to the secretary of state prior to |
|---|
| 5382 | | - | December 31 of the year it commences the different tax period. |
|---|
| 5383 | | - | (b) The report shall be filed biennially, as determined by the year |
|---|
| 5384 | | - | that the limited liability company or series filed its formation |
|---|
| 5385 | | - | documents. A limited liability company or series that filed formation |
|---|
| 5386 | | - | documents in an even-numbered year shall file a report in each even- |
|---|
| 5387 | | - | numbered year. A limited liability company or series that filed |
|---|
| 5388 | | - | formation documents in an odd-numbered year shall file a report in |
|---|
| 5389 | | - | each odd-numbered year. It is permissible to file at one time the |
|---|
| 5390 | | - | biennial report information for more than one limited liability company H Sub for SENATE BILL No. 244—page 92 |
|---|
| 5391 | | - | or series, regardless of whether the formation documents were filed in |
|---|
| 5392 | | - | an even-numbered or odd-numbered year, provided except that all the |
|---|
| 5393 | | - | reports shall be filed in the first year a biennial report is due under this |
|---|
| 5394 | | - | law and in odd-numbered years thereafter. The report shall be filed |
|---|
| 5395 | | - | after the close of the limited liability company's tax period or series' tax |
|---|
| 5396 | | - | period but not later than at the time prescribed by law for filing the |
|---|
| 5397 | | - | limited liability company's or series' annual Kansas income tax return, |
|---|
| 5398 | | - | or if applicable law does not prescribe a time for filing an annual |
|---|
| 5399 | | - | Kansas income tax return for a series, the report for the series shall be |
|---|
| 5400 | | - | filed at, and for purposes of this section its tax period shall be deemed |
|---|
| 5401 | | - | to be, the time prescribed by law for filing the annual Kansas income |
|---|
| 5402 | | - | tax return for the limited liability company to which the series is |
|---|
| 5403 | | - | associated. |
|---|
| 5404 | | - | (c) The report shall be made on a form prescribed by the secretary |
|---|
| 5405 | | - | of state and shall contain the following information for each limited |
|---|
| 5406 | | - | liability company or series: |
|---|
| 5407 | | - | (1) The name of the limited liability company or series, as |
|---|
| 5408 | | - | applicable; and |
|---|
| 5409 | | - | (2) a list of the members owning at least 5% of the capital of the |
|---|
| 5410 | | - | limited liability company or series, as applicable, with the post office |
|---|
| 5411 | | - | postal address of each; and |
|---|
| 5412 | | - | (3) the location of the principal office, including the building and |
|---|
| 5413 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 5414 | | - | state and zip code. |
|---|
| 5415 | | - | (d) (1) Every foreign limited liability company shall make a |
|---|
| 5416 | | - | written business entity information report to the secretary of state, |
|---|
| 5417 | | - | stating the prescribed information concerning the limited liability |
|---|
| 5418 | | - | company at the close of business on the last day of its tax period next |
|---|
| 5419 | | - | preceding the date of filing. If the limited liability company's tax period |
|---|
| 5420 | | - | is other than the calendar year, it shall give notice in writing of its |
|---|
| 5421 | | - | different tax period to the secretary of state prior to December 31 of the |
|---|
| 5422 | | - | year it commences the different tax period. |
|---|
| 5423 | | - | (2) The report shall be filed biennially, as determined by the year |
|---|
| 5424 | | - | that the foreign limited liability company filed its foreign limited |
|---|
| 5425 | | - | liability company application. A foreign limited liability company that |
|---|
| 5426 | | - | filed its application in an even-numbered year shall file a report in each |
|---|
| 5427 | | - | even-numbered year. A foreign limited liability company that filed its |
|---|
| 5428 | | - | application in an odd-numbered year shall file a report in each odd- |
|---|
| 5429 | | - | numbered year. The report shall be filed after the close of the foreign |
|---|
| 5430 | | - | limited liability company's tax period but not later than at the time |
|---|
| 5431 | | - | prescribed by law for filing the limited liability company's annual |
|---|
| 5432 | | - | Kansas income tax return. |
|---|
| 5433 | | - | (3) The report shall be made on a form prescribed by the secretary |
|---|
| 5434 | | - | of state and shall contain the name of the limited liability company. |
|---|
| 5435 | | - | (e) The business entity information report required by this section |
|---|
| 5436 | | - | shall be executed by one or more authorized persons, and filed with the |
|---|
| 5437 | | - | secretary of state. The execution of such report by a person who is |
|---|
| 5438 | | - | authorized by the Kansas revised limited liability company act to |
|---|
| 5439 | | - | execute such report, upon filing such report with the secretary of state, |
|---|
| 5440 | | - | constitutes an oath or affirmation, under penalties of perjury that, to the |
|---|
| 5441 | | - | best of such person's knowledge and belief, the facts stated therein in |
|---|
| 5442 | | - | such report are true. |
|---|
| 5443 | | - | (f) At the time of filing the business entity information report, |
|---|
| 5444 | | - | each limited liability company or series shall pay to the secretary of |
|---|
| 5445 | | - | state a fee in an amount equal to $80, plus the amount specified in rules |
|---|
| 5446 | | - | and regulations of the secretary multiplied by the number of tax periods |
|---|
| 5447 | | - | included in the report. |
|---|
| 5448 | | - | (g) The provisions of K.S.A. 17-7509, and amendments thereto, |
|---|
| 5449 | | - | relating to penalties for failure of a corporation to file business entity H Sub for SENATE BILL No. 244—page 93 |
|---|
| 5450 | | - | information report or pay the required fee, and the provisions of K.S.A. |
|---|
| 5451 | | - | 17-7510(a), and amendments thereto, relating to penalties for failure of |
|---|
| 5452 | | - | a corporation to file business entity information report or pay the |
|---|
| 5453 | | - | required fee, shall be applicable to the articles of organization of any |
|---|
| 5454 | | - | domestic limited liability company, the certificate of designation of any |
|---|
| 5455 | | - | series thereof, or to the authority of any foreign limited liability |
|---|
| 5456 | | - | company which that fails to file its business entity information report or |
|---|
| 5457 | | - | pay the fee within 90 days of the time prescribed in this section for |
|---|
| 5458 | | - | filing and paying the same or, in the case of a report filing and fee |
|---|
| 5459 | | - | received by mail, postmarked within 90 days of the time for filing and |
|---|
| 5460 | | - | paying the same. Whenever the articles of organization of a domestic |
|---|
| 5461 | | - | limited liability company, the certificate of designation of a series |
|---|
| 5462 | | - | thereof, or the authority of any foreign limited liability company are |
|---|
| 5463 | | - | forfeited or canceled for failure to file business entity information |
|---|
| 5464 | | - | report or to pay the required fee, the domestic limited liability company |
|---|
| 5465 | | - | or the authority of a foreign limited liability company may be reinstated |
|---|
| 5466 | | - | by filing a certificate of reinstatement, pursuant to K.S.A. 2022 Supp. |
|---|
| 5467 | | - | 17-76,146, and amendments thereto, and the certificate of designation |
|---|
| 5468 | | - | may be reinstated by filing a certificate of reinstatement, pursuant to |
|---|
| 5469 | | - | K.S.A. 2022 Supp. 17-76,147, and amendments thereto, and in each |
|---|
| 5470 | | - | case, paying to the secretary of state all fees, including any penalties |
|---|
| 5471 | | - | thereon, due to the state. |
|---|
| 5472 | | - | (h) All copies of applications for extension of the time for filing |
|---|
| 5473 | | - | income tax returns submitted to the secretary of state pursuant to law |
|---|
| 5474 | | - | shall be maintained by the secretary of state in a confidential file and |
|---|
| 5475 | | - | shall not be disclosed to any person except as authorized pursuant to |
|---|
| 5476 | | - | the provisions of K.S.A. 79-3234, and amendments thereto, a proper |
|---|
| 5477 | | - | judicial order, or subsection (g). All copies of such applications shall be |
|---|
| 5478 | | - | preserved for one year and thereafter until the secretary of state orders |
|---|
| 5479 | | - | that they be destroyed. |
|---|
| 5480 | | - | (i) A copy of such application shall be open to inspection by or |
|---|
| 5481 | | - | disclosure to any person who was a member of such limited liability |
|---|
| 5482 | | - | company or series during any part of the period covered by the |
|---|
| 5483 | | - | extension. |
|---|
| 5484 | | - | Sec. 53. K.S.A. 2022 Supp. 17-78-102 is hereby amended to read |
|---|
| 5485 | | - | as follows: 17-78-102. As used in this act: |
|---|
| 5486 | | - | (a) "Acquired entity" means the entity, all of one or more classes |
|---|
| 5487 | | - | or series of interests in which are acquired in an interest exchange. |
|---|
| 5488 | | - | (b) "Acquiring entity" means the entity that acquires all of one or |
|---|
| 5489 | | - | more classes or series of interests of the acquired entity in an interest |
|---|
| 5490 | | - | exchange. |
|---|
| 5491 | | - | (c) "Agreement" means a plan or agreement of merger, interest |
|---|
| 5492 | | - | exchange, conversion or domestication. |
|---|
| 5493 | | - | (d) "Approve" means, in the case of an entity, for its governors |
|---|
| 5494 | | - | and interest holders to take whatever steps are necessary under its |
|---|
| 5495 | | - | organic rules, organic law, and other law to: |
|---|
| 5496 | | - | (1) Propose a transaction subject to this act; |
|---|
| 5497 | | - | (2) adopt and approve the terms and conditions of the transaction; |
|---|
| 5498 | | - | and |
|---|
| 5499 | | - | (3) conduct any required proceedings or otherwise obtain any |
|---|
| 5500 | | - | required votes or consents of the governors or interest holders. |
|---|
| 5501 | | - | (e) "Conversion" means a transaction authorized by K.S.A. 2022 |
|---|
| 5502 | | - | Supp. 17-78-401 through 17-78-406, and amendments thereto. |
|---|
| 5503 | | - | (f) "Converted entity" means the converting entity as it continues |
|---|
| 5504 | | - | in existence after a conversion. |
|---|
| 5505 | | - | (g) "Converting entity" means the domestic entity that approves an |
|---|
| 5506 | | - | agreement of conversion pursuant to K.S.A. 2022 Supp. 17-78-403, and |
|---|
| 5507 | | - | amendments thereto, or the foreign entity that approves a conversion |
|---|
| 5508 | | - | pursuant to the law of its jurisdiction of organization. H Sub for SENATE BILL No. 244—page 94 |
|---|
| 5509 | | - | (h) "Domestic entity" means an entity whose internal affairs are |
|---|
| 5510 | | - | governed by the law of this state. |
|---|
| 5511 | | - | (i) "Domesticated entity" means the domesticating entity as it |
|---|
| 5512 | | - | continues in existence after a domestication. |
|---|
| 5513 | | - | (j) "Domesticating entity" means the domestic entity that approves |
|---|
| 5514 | | - | an agreement of domestication pursuant to K.S.A. 2022 Supp. 17-78- |
|---|
| 5515 | | - | 503, and amendments thereto, or the foreign entity that approves a |
|---|
| 5516 | | - | domestication pursuant to the law of its jurisdiction of organization. |
|---|
| 5517 | | - | (k) "Domestication" means a transaction authorized by K.S.A. |
|---|
| 5518 | | - | 2022 Supp. 17-78-501 through 17-78-506, and amendments thereto. |
|---|
| 5519 | | - | (l) "Entity" means: |
|---|
| 5520 | | - | (1) A corporation; |
|---|
| 5521 | | - | (2) a general partnership, including a limited liability partnership; |
|---|
| 5522 | | - | (3) a limited partnership, including a limited liability limited |
|---|
| 5523 | | - | partnership; |
|---|
| 5524 | | - | (4) a limited liability company; |
|---|
| 5525 | | - | (5) a business trust or statutory trust entity; |
|---|
| 5526 | | - | (6) a cooperative; or |
|---|
| 5527 | | - | (7) any other person that has a separate legal existence or has the |
|---|
| 5528 | | - | power to acquire an interest in real property in its own name other than: |
|---|
| 5529 | | - | (A) An individual; |
|---|
| 5530 | | - | (B) a testamentary, inter vivos, or charitable trust, with the |
|---|
| 5531 | | - | exception of a business trust, statutory trust entity or similar trust; |
|---|
| 5532 | | - | (C) an association or relationship that is not a partnership solely |
|---|
| 5533 | | - | by reason of subsection (c) of K.S.A. 56a-202(c), and amendments |
|---|
| 5534 | | - | thereto, or a similar provision of the law of any other jurisdiction; |
|---|
| 5535 | | - | (D) a decedent's estate; or |
|---|
| 5536 | | - | (E) a government, a governmental subdivision, agency, or |
|---|
| 5537 | | - | instrumentality or a quasi-governmental instrumentality. |
|---|
| 5538 | | - | (m) "Filing entity" means an entity that is created by the filing of a |
|---|
| 5539 | | - | public organic document. |
|---|
| 5540 | | - | (n) "Foreign entity" means an entity whose internal affairs are |
|---|
| 5541 | | - | governed by the laws of a jurisdiction other than this state. |
|---|
| 5542 | | - | (o) "Governance interest" means the right under the organic law or |
|---|
| 5543 | | - | organic rules of an entity, other than as a governor, agent, assignee or |
|---|
| 5544 | | - | proxy, to: |
|---|
| 5545 | | - | (1) Receive or demand access to information concerning, or the |
|---|
| 5546 | | - | books and records of, the entity; |
|---|
| 5547 | | - | (2) vote for the election of the governors of the entity; or |
|---|
| 5548 | | - | (3) receive notice of or vote on any or all issues involving the |
|---|
| 5549 | | - | internal affairs of the entity. |
|---|
| 5550 | | - | (p) "Governor" means a person by or under whose authority the |
|---|
| 5551 | | - | powers of an entity are exercised and under whose direction the |
|---|
| 5552 | | - | business and affairs of the entity are managed pursuant to the organic |
|---|
| 5553 | | - | law and organic rules of the entity. |
|---|
| 5554 | | - | (q) "Interest" means: |
|---|
| 5555 | | - | (1) A governance interest in an unincorporated entity; |
|---|
| 5556 | | - | (2) a transferable interest in an unincorporated entity; or |
|---|
| 5557 | | - | (3) a share or membership in a corporation. |
|---|
| 5558 | | - | (r) "Interest exchange" means a transaction authorized by K.S.A. |
|---|
| 5559 | | - | 2022 Supp. 17-78-301 through 17-78-306, and amendments thereto. |
|---|
| 5560 | | - | (s) "Interest holder" means a direct holder of an interest. |
|---|
| 5561 | | - | (t) "Interest holder liability" means: |
|---|
| 5562 | | - | (1) Personal liability for a liability of an entity that is imposed on a |
|---|
| 5563 | | - | person: |
|---|
| 5564 | | - | (A) Solely by reason of the status of the person as an interest |
|---|
| 5565 | | - | holder; or |
|---|
| 5566 | | - | (B) by the organic rules of the entity pursuant to a provision of the |
|---|
| 5567 | | - | organic law authorizing the organic rules to make one or more specified H Sub for SENATE BILL No. 244—page 95 |
|---|
| 5568 | | - | interest holders or categories of interest holders liable in their capacity |
|---|
| 5569 | | - | as interest holders for all or specified liabilities of the entity; or |
|---|
| 5570 | | - | (2) an obligation of an interest holder under the organic rules of an |
|---|
| 5571 | | - | entity to contribute to the entity. |
|---|
| 5572 | | - | (u) "Jurisdiction of organization" of an entity means the |
|---|
| 5573 | | - | jurisdiction whose law includes the organic law of the entity. |
|---|
| 5574 | | - | (v) "Liability" means a debt, obligation or any other liability |
|---|
| 5575 | | - | arising in any manner, regardless of whether it is secured or whether it |
|---|
| 5576 | | - | is contingent. |
|---|
| 5577 | | - | (w) "Merger" means a transaction in which two or more merging |
|---|
| 5578 | | - | entities are combined into a surviving entity pursuant to a filing with |
|---|
| 5579 | | - | the secretary of state. |
|---|
| 5580 | | - | (x) "Merging entity" means an entity that is a party to a merger |
|---|
| 5581 | | - | and exists immediately before the merger becomes effective. |
|---|
| 5582 | | - | (y) "Organic law" means the statutes, if any, other than this act, |
|---|
| 5583 | | - | governing the internal affairs of an entity. |
|---|
| 5584 | | - | (z) "Organic rules" means the public organic document and private |
|---|
| 5585 | | - | organic rules of an entity. |
|---|
| 5586 | | - | (aa) "Person" means an individual, corporation, estate, trust, |
|---|
| 5587 | | - | partnership, limited liability company, business or similar trust, |
|---|
| 5588 | | - | association, joint venture, public corporation, government, or |
|---|
| 5589 | | - | governmental subdivision, agency, or instrumentality, or any other legal |
|---|
| 5590 | | - | or commercial entity. |
|---|
| 5591 | | - | (bb) "Private organic rules" mean the rules, whether or not in a |
|---|
| 5592 | | - | record, that govern the internal affairs of an entity, are binding on all of |
|---|
| 5593 | | - | its interest holders and are not part of its public organic document, if |
|---|
| 5594 | | - | any. |
|---|
| 5595 | | - | (cc) "Protected agreement" means: |
|---|
| 5596 | | - | (1) A record evidencing indebtedness and any related agreement in |
|---|
| 5597 | | - | effect on the effective date of this act; |
|---|
| 5598 | | - | (2) an agreement that is binding on an entity on the effective date |
|---|
| 5599 | | - | of this act; |
|---|
| 5600 | | - | (3) the organic rules of an entity in effect on the effective date of |
|---|
| 5601 | | - | this act; or |
|---|
| 5602 | | - | (4) an agreement that is binding on any of the governors or |
|---|
| 5603 | | - | interest holders of an entity on the effective date of this act. |
|---|
| 5604 | | - | (dd) "Public organic document" means the public record the filing |
|---|
| 5605 | | - | of which creates an entity and any amendment to or restatement of that |
|---|
| 5606 | | - | record. |
|---|
| 5607 | | - | (ee) "Qualified foreign entity" means a foreign entity that is |
|---|
| 5608 | | - | authorized to transact business in this state pursuant to a filing with the |
|---|
| 5609 | | - | secretary of state. |
|---|
| 5610 | | - | (ff) "Record" means information that is inscribed on a tangible |
|---|
| 5611 | | - | medium or that is stored in an electronic or other medium and is |
|---|
| 5612 | | - | retrievable in perceivable form. |
|---|
| 5613 | | - | (gg) "Sign" means, with present intent to authenticate or adopt a |
|---|
| 5614 | | - | record: |
|---|
| 5615 | | - | (1) To execute or adopt a tangible symbol; or |
|---|
| 5616 | | - | (2) to attach to or logically associate with the record an electronic |
|---|
| 5617 | | - | sound, symbol or process. |
|---|
| 5618 | | - | (hh) "Surviving entity" means the entity that continues in |
|---|
| 5619 | | - | existence after or is created by a merger. |
|---|
| 5620 | | - | (ii) "Transferable interest" means the right under an entity's |
|---|
| 5621 | | - | organic law to receive distributions from the entity. |
|---|
| 5622 | | - | (jj) "Type," with regard to an entity, means a generic form of |
|---|
| 5623 | | - | entity: |
|---|
| 5624 | | - | (1) Recognized at common law; or |
|---|
| 5625 | | - | (2) organized or formed under an organic law, whether or not |
|---|
| 5626 | | - | some entities organized or formed under that organic law are subject to H Sub for SENATE BILL No. 244—page 96 |
|---|
| 5627 | | - | provisions of that law that create different categories of the form of |
|---|
| 5628 | | - | entity. |
|---|
| 5629 | | - | Sec. 54. K.S.A. 2022 Supp. 17-78-202 is hereby amended to read |
|---|
| 5630 | | - | as follows: 17-78-202. (a) A domestic entity may become a party to a |
|---|
| 5631 | | - | merger under K.S.A. 2022 Supp. 17-78-201 through 17-78-206, and |
|---|
| 5632 | | - | amendments thereto, by approving an agreement of merger unless |
|---|
| 5633 | | - | approval is not required under the circumstances stated in K.S.A. 2022 |
|---|
| 5634 | | - | Supp. 17-78-203(c), and amendments thereto. The agreement shall be |
|---|
| 5635 | | - | in a record and contain: |
|---|
| 5636 | | - | (1) As to each merging entity, its name, jurisdiction of |
|---|
| 5637 | | - | organization and type; |
|---|
| 5638 | | - | (2) if the surviving entity is to be created in the merger, a |
|---|
| 5639 | | - | statement to that effect and its name, jurisdiction of organization and |
|---|
| 5640 | | - | type; |
|---|
| 5641 | | - | (3) the manner of converting the interests in each party to the |
|---|
| 5642 | | - | merger into interests, securities, obligations, rights to acquire interests |
|---|
| 5643 | | - | or securities, cash or other property or any combination of the |
|---|
| 5644 | | - | foregoing thereof, except that if the circumstances stated in K.S.A. 2022 |
|---|
| 5645 | | - | Supp. 17-78-203(c), and amendments thereto, apply and the merger |
|---|
| 5646 | | - | entity does not own all of the interests of the domestic corporation or |
|---|
| 5647 | | - | corporations, then an interest holder in a domestic corporation shall |
|---|
| 5648 | | - | not become a general partner in a surviving entity that is a |
|---|
| 5649 | | - | partnership, other than a limited liability partnership; |
|---|
| 5650 | | - | (4) if the surviving entity exists before the merger, any proposed |
|---|
| 5651 | | - | amendments to its public organic document or to its private organic |
|---|
| 5652 | | - | rules, which may amend and restate its public organic document or its |
|---|
| 5653 | | - | private organic rules or both, that are, or are proposed to be, in a |
|---|
| 5654 | | - | record; |
|---|
| 5655 | | - | (5) if the surviving entity is to be created in the merger, its |
|---|
| 5656 | | - | proposed public organic document, if any, and the full text of its private |
|---|
| 5657 | | - | organic rules that are proposed to be in a record; |
|---|
| 5658 | | - | (6) the other terms and conditions of the merger; and |
|---|
| 5659 | | - | (7) any other provision required by the law of a merging entity's |
|---|
| 5660 | | - | jurisdiction of organization or the organic rules of a merging entity. |
|---|
| 5661 | | - | (b) An agreement of merger shall be signed on behalf of each |
|---|
| 5662 | | - | merging entity, except under the circumstances stated in K.S.A. 2022 |
|---|
| 5663 | | - | Supp. 17-78-203(c), and amendments thereto, in which case the |
|---|
| 5664 | | - | agreement of merger shall only be signed on behalf of the merging |
|---|
| 5665 | | - | entity that owns at least 90% of the interests of a domestic corporation |
|---|
| 5666 | | - | or corporations. |
|---|
| 5667 | | - | (c) An agreement of merger may contain any other provision not |
|---|
| 5668 | | - | prohibited by law. |
|---|
| 5669 | | - | Sec. 55. K.S.A. 2022 Supp. 17-78-203 is hereby amended to read |
|---|
| 5670 | | - | as follows: 17-78-203. (a) Except as provided in subsection (c), an |
|---|
| 5671 | | - | agreement of merger is not effective unless it has been approved: |
|---|
| 5672 | | - | (1) By a domestic merging entity: |
|---|
| 5673 | | - | (A) In accordance with the requirements, if any, in its organic law |
|---|
| 5674 | | - | and organic rules for approval of: |
|---|
| 5675 | | - | (i) In the case of an entity that is not a corporation, a merger; or |
|---|
| 5676 | | - | (ii) in the case of a corporation, a merger requiring approval by a |
|---|
| 5677 | | - | vote of the interest holders of the corporation; or |
|---|
| 5678 | | - | (B) if neither its organic law nor organic rules provide for |
|---|
| 5679 | | - | approval of a merger described in subparagraph (A), by all of the |
|---|
| 5680 | | - | interest holders of the entity entitled to vote on or consent to any |
|---|
| 5681 | | - | matter; and |
|---|
| 5682 | | - | (2) in a record, by each interest holder of a domestic merging |
|---|
| 5683 | | - | entity that will have interest holder liability for liabilities that arise after |
|---|
| 5684 | | - | the merger becomes effective, unless, in the case of an entity that is not |
|---|
| 5685 | | - | a corporation: H Sub for SENATE BILL No. 244—page 97 |
|---|
| 5686 | | - | (A) The organic rules of the entity provide in a record for the |
|---|
| 5687 | | - | approval of a merger in which some or all of its interest holders become |
|---|
| 5688 | | - | subject to interest holder liability by the vote or consent of fewer than |
|---|
| 5689 | | - | all of the interest holders; and |
|---|
| 5690 | | - | (B) the interest holder voted for or consented in a record to that |
|---|
| 5691 | | - | provision of the organic rules or became an interest holder after the |
|---|
| 5692 | | - | adoption of that provision. |
|---|
| 5693 | | - | (b) A merger involving a foreign merging entity is not effective |
|---|
| 5694 | | - | unless it is approved by the foreign entity in accordance with the law of |
|---|
| 5695 | | - | the foreign entity's jurisdiction of organization. |
|---|
| 5696 | | - | (c) If a merging entity owns at least 90% of the interests of a |
|---|
| 5697 | | - | domestic corporation or corporations, other than a domestic |
|---|
| 5698 | | - | corporation that has in its articles of incorporation the provisions |
|---|
| 5699 | | - | required by K.S.A. 17-6701(g)(7)(B), and amendments thereto, of |
|---|
| 5700 | | - | which there are interests that, absent this subsection would be entitled |
|---|
| 5701 | | - | to approve an agreement of merger, an agreement of merger is effective |
|---|
| 5702 | | - | if such merging entity has approved the agreement of merger as |
|---|
| 5703 | | - | provided in subsection (a) or (b) and the approval of such domestic |
|---|
| 5704 | | - | corporation or corporations is not required. |
|---|
| 5705 | | - | Sec. 56. K.S.A. 2022 Supp. 17-78-205 is hereby amended to read |
|---|
| 5706 | | - | as follows: 17-78-205. (a) A certificate of merger shall be signed on |
|---|
| 5707 | | - | behalf of the surviving entity and filed with the secretary of state. |
|---|
| 5708 | | - | (b) A certificate of merger shall contain: |
|---|
| 5709 | | - | (1) The name, jurisdiction of organization and type of each |
|---|
| 5710 | | - | merging entity that is not the surviving entity; |
|---|
| 5711 | | - | (2) the name, jurisdiction of organization and type of the surviving |
|---|
| 5712 | | - | entity; |
|---|
| 5713 | | - | (3) if the certificate of merger is not to be effective upon filing, the |
|---|
| 5714 | | - | later date and time on which when it will become effective, which may |
|---|
| 5715 | | - | shall not be more than 90 days after the date of filing; |
|---|
| 5716 | | - | (4) a statement that the merger was approved by each domestic |
|---|
| 5717 | | - | merging entity, if any, in accordance with K.S.A. 2022 Supp. 17-78-201 |
|---|
| 5718 | | - | through 17-78-206, and amendments thereto, or if not required to be |
|---|
| 5719 | | - | approved under the circumstances stated in K.S.A. 2022 Supp. 17-78- |
|---|
| 5720 | | - | 203(c), and amendments thereto, a statement that the circumstances |
|---|
| 5721 | | - | stated in K.S.A. 2022 Supp. 17-78-203(c), and amendments thereto, |
|---|
| 5722 | | - | apply, and by each foreign merging entity, if any, in accordance with |
|---|
| 5723 | | - | the law of its jurisdiction of organization; |
|---|
| 5724 | | - | (5) if the surviving entity exists before the merger and is a |
|---|
| 5725 | | - | domestic filing entity, any amendment to its public organic document |
|---|
| 5726 | | - | approved as part of the agreement of merger, which may amend and |
|---|
| 5727 | | - | restate its public organic document; |
|---|
| 5728 | | - | (6) if the surviving entity is created by the merger and is a |
|---|
| 5729 | | - | domestic filing entity, its public organic document, as an attachment; |
|---|
| 5730 | | - | (7) if the surviving entity is created by the merger and is a |
|---|
| 5731 | | - | domestic limited liability partnership, its statement of qualification, as |
|---|
| 5732 | | - | an attachment; and |
|---|
| 5733 | | - | (8) if the surviving entity is a foreign entity that is not a qualified |
|---|
| 5734 | | - | foreign entity, a mailing postal address to which the secretary of state |
|---|
| 5735 | | - | may send any process served on the secretary of state pursuant to |
|---|
| 5736 | | - | subsection (e) of K.S.A. 2022 Supp. 17-78-206(e), and amendments |
|---|
| 5737 | | - | thereto. |
|---|
| 5738 | | - | (c) In addition to the requirements of subsection (b), a certificate |
|---|
| 5739 | | - | of merger may contain any other provision not prohibited by law. |
|---|
| 5740 | | - | (d) If the surviving entity is a domestic entity, its name and any |
|---|
| 5741 | | - | attached public organic document shall satisfy the requirements of the |
|---|
| 5742 | | - | law of this state, except that it does not need to be signed and may omit |
|---|
| 5743 | | - | any provision that is not required to be included in a restatement of the |
|---|
| 5744 | | - | public organic document. If the surviving entity is a qualified foreign H Sub for SENATE BILL No. 244—page 98 |
|---|
| 5745 | | - | entity, its name shall satisfy the requirements of the law of this state. |
|---|
| 5746 | | - | (e) An agreement of merger that is signed on behalf of all of the |
|---|
| 5747 | | - | merging entities, or under the circumstances stated in K.S.A. 2022 |
|---|
| 5748 | | - | Supp. 17-78-203(c), and amendments thereto, only signed on behalf of |
|---|
| 5749 | | - | the merging entity that owns at least 90% of the interest of a domestic |
|---|
| 5750 | | - | corporation or corporations, and meets all of the requirements of |
|---|
| 5751 | | - | subsection (b) may be filed with the secretary of state instead of a |
|---|
| 5752 | | - | certificate of merger and upon filing has the same effect. If an |
|---|
| 5753 | | - | agreement of merger is filed as provided in this subsection, references |
|---|
| 5754 | | - | in this act to a certificate of merger refer to the agreement of merger |
|---|
| 5755 | | - | filed under this subsection. |
|---|
| 5756 | | - | (f) A certificate of merger becomes effective upon the date and |
|---|
| 5757 | | - | time of filing or the later date and time specified in the certificate of |
|---|
| 5758 | | - | merger. |
|---|
| 5759 | | - | Sec. 57. K.S.A. 2022 Supp. 17-78-302 is hereby amended to read |
|---|
| 5760 | | - | as follows: 17-78-302. (a) A domestic entity may be the acquired entity |
|---|
| 5761 | | - | in an interest exchange under K.S.A. 2022 Supp. 17-78-301 through |
|---|
| 5762 | | - | 17-78-306, and amendments thereto, by approving an agreement of |
|---|
| 5763 | | - | interest exchange. The agreement shall be in a record and contain: |
|---|
| 5764 | | - | (1) The name and type of the acquired entity; |
|---|
| 5765 | | - | (2) the name, jurisdiction of organization and type of the acquiring |
|---|
| 5766 | | - | entity; |
|---|
| 5767 | | - | (3) the manner of converting the interests in the acquired entity |
|---|
| 5768 | | - | into interests, securities, obligations, rights to acquire interests or |
|---|
| 5769 | | - | securities, cash, or other property or any combination of the foregoing |
|---|
| 5770 | | - | thereof; |
|---|
| 5771 | | - | (4) any proposed amendments to the public organic document or |
|---|
| 5772 | | - | private organic rules, which may amend and restate its public organic |
|---|
| 5773 | | - | document or its private organic rules or both, that are, or are proposed |
|---|
| 5774 | | - | to be, in a record of the acquired entity; |
|---|
| 5775 | | - | (5) the other terms and conditions of the interest exchange; and |
|---|
| 5776 | | - | (6) any other provision required by the law of this state or the |
|---|
| 5777 | | - | organic rules of the acquired entity. |
|---|
| 5778 | | - | (b) An agreement of interest exchange may contain any other |
|---|
| 5779 | | - | provision not prohibited by law. |
|---|
| 5780 | | - | Sec. 58. K.S.A. 2022 Supp. 17-78-606 is hereby amended to read |
|---|
| 5781 | | - | as follows: 17-78-606. This act modifies, limits and supersedesIn the |
|---|
| 5782 | | - | event that any provision of article 78 of chapter 17 of the Kansas |
|---|
| 5783 | | - | Statutes Annotated, and amendments thereto, is deemed to modify, limit |
|---|
| 5784 | | - | or supersede the federal electronic signatures in global and national |
|---|
| 5785 | | - | commerce act 15, U.S.C. § 7001 et seq., but does not modify, limit or |
|---|
| 5786 | | - | supersede section 101(c) of that act 15 U.S.C. § 7001(c) or authorize |
|---|
| 5787 | | - | electronic delivery of any of the notices described in section 103(b) of |
|---|
| 5788 | | - | that act the provisions of this article shall control to the fullest extent |
|---|
| 5789 | | - | permitted by 15 U.S.C. § 7003(b) 7002(a)(2). |
|---|
| 5790 | | - | Sec. 59. K.S.A. 2022 Supp. 17-7914 is hereby amended to read as |
|---|
| 5791 | | - | follows: 17-7914. (a) Any document required to be filed by this act |
|---|
| 5792 | | - | with the secretary of state may be filed by telefacsimile or electronic |
|---|
| 5793 | | - | communication. If such telefacsimile or electronic communication is |
|---|
| 5794 | | - | accompanied with the appropriate fees, and meets the statutory |
|---|
| 5795 | | - | requirements, it shall be effective upon its filing date or future effective |
|---|
| 5796 | | - | date as prescribed in the document. The secretary of state shall |
|---|
| 5797 | | - | prescribe a telefacsimile or electronic communication fee in addition to |
|---|
| 5798 | | - | any filing fees to cover the cost of the services. The fee must be paid |
|---|
| 5799 | | - | prior to acceptance of a telefacsimile or electronic communication |
|---|
| 5800 | | - | under this section. The telefacsimile or electronic communication fee |
|---|
| 5801 | | - | shall be deposited into the information and services fee fund. |
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| 5802 | | - | (b) As used in this act, "telefacsimile or electronic |
|---|
| 5803 | | - | communication" means the use of electronic equipment to send or H Sub for SENATE BILL No. 244—page 99 |
|---|
| 5804 | | - | transfer a document, including attachment to an electronic mail or |
|---|
| 5805 | | - | direct upload. This section shall not be construed so as to require the |
|---|
| 5806 | | - | secretary of state to accept any filing through electronic mail any |
|---|
| 5807 | | - | particular means. The secretary of state may designate acceptable types |
|---|
| 5808 | | - | or formats of telefacsimile or electronic communication for filing |
|---|
| 5809 | | - | documents pursuant to this act. |
|---|
| 5810 | | - | (c) This section shall take effect on and after January 1, 2015. |
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| 5811 | | - | Sec. 60. K.S.A. 2022 Supp. 17-7918 is hereby amended to read as |
|---|
| 5812 | | - | follows: 17-7918. (a) Except as otherwise provided in subsection (b), |
|---|
| 5813 | | - | the names of all covered entities, except for banks, savings and loan |
|---|
| 5814 | | - | associations and savings banks, must be distinguishable on the records |
|---|
| 5815 | | - | of the office of the secretary of state from: |
|---|
| 5816 | | - | (1) The name of any other covered entity or foreign covered |
|---|
| 5817 | | - | entity; |
|---|
| 5818 | | - | (2) the name of any non-covered entity, other than a general |
|---|
| 5819 | | - | partnership, that has filed with the office of the secretary of state, |
|---|
| 5820 | | - | including a series of a limited liability company for which a certificate |
|---|
| 5821 | | - | of designation has been filed; |
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| 5822 | | - | (3) any entity name reserved pursuant to K.S.A. 2022 Supp. 17- |
|---|
| 5823 | | - | 7923, and amendments thereto; and |
|---|
| 5824 | | - | (4) the name of any other covered entity, series of a limited |
|---|
| 5825 | | - | liability company or foreign covered entity whose public organic |
|---|
| 5826 | | - | documents, certificate of designation or foreign registration has been |
|---|
| 5827 | | - | canceled or forfeited for any reason within the previous one year. |
|---|
| 5828 | | - | (b) A covered entity may register under any name that is not |
|---|
| 5829 | | - | distinguishable on the records of the office of the secretary of state |
|---|
| 5830 | | - | from the name of any other covered entity or non-covered entity that |
|---|
| 5831 | | - | has filed with the office of the secretary of state with the written |
|---|
| 5832 | | - | consent of the other entity, which written consent shall be filed with the |
|---|
| 5833 | | - | secretary of state on a form prescribed by the secretary of state. |
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| 5834 | | - | (c) A covered entity may use a name that is not distinguishable |
|---|
| 5835 | | - | from a name described in subsection (a)(1) through (3) if the entity |
|---|
| 5836 | | - | delivers to the secretary of state a certified copy of a final judgment of |
|---|
| 5837 | | - | a court of competent jurisdiction establishing the right of the entity to |
|---|
| 5838 | | - | use the name in this state. |
|---|
| 5839 | | - | Sec. 61. K.S.A. 2022 Supp. 17-7919 is hereby amended to read as |
|---|
| 5840 | | - | follows: 17-7919. (a) The name of a corporation, except for banks, |
|---|
| 5841 | | - | savings and loan associations, savings banks and public benefit |
|---|
| 5842 | | - | corporations, shall contain: |
|---|
| 5843 | | - | (1) One of the following words: "Association"; "church" or well- |
|---|
| 5844 | | - | recognized words for religious institutions; "college"; "company"; |
|---|
| 5845 | | - | "corporation"; "club"; "foundation"; "fund"; "incorporated"; "institute"; |
|---|
| 5846 | | - | "society"; "union"; "university"; "syndicate" or "limited"; |
|---|
| 5847 | | - | (2) one of the following abbreviations: "Co."; "corp."; "inc." or |
|---|
| 5848 | | - | "ltd."; or |
|---|
| 5849 | | - | (3) words or abbreviations of like import in other languages if they |
|---|
| 5850 | | - | are written in Roman characters or letters. |
|---|
| 5851 | | - | (b) The name of a public benefit corporation shall contain either or |
|---|
| 5852 | | - | both of one of the words, abbreviations or designations in subsection |
|---|
| 5853 | | - | (a) or: |
|---|
| 5854 | | - | (1) The words "public benefit corporation"; |
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| 5855 | | - | (2) the abbreviation "P.B.C."; |
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| 5856 | | - | (3) the designation "PBC"; or |
|---|
| 5857 | | - | (4) words or abbreviations of like import in other languages if they |
|---|
| 5858 | | - | are written in Roman characters or letters. |
|---|
| 5859 | | - | Sec. 62. K.S.A. 2022 Supp. 17-7924 is hereby amended to read as |
|---|
| 5860 | | - | follows: 17-7924. (a) Every covered entity shall have and maintain in |
|---|
| 5861 | | - | this state a registered office which that may, but need not be, the same |
|---|
| 5862 | | - | as its place of business. H Sub for SENATE BILL No. 244—page 100 |
|---|
| 5863 | | - | (b) Whenever the term "principal office or place of business in this |
|---|
| 5864 | | - | state" or "principal office or place of business of the (applicable |
|---|
| 5865 | | - | covered entity) in this state," or other term of like import, is or has been |
|---|
| 5866 | | - | used in the covered entity's public organic documents, or in any other |
|---|
| 5867 | | - | document or in any statute other than the Kansas uniform commercial |
|---|
| 5868 | | - | code, unless the context indicates otherwise, it shall be deemed to mean |
|---|
| 5869 | | - | and refer to the covered entity's registered office required by this |
|---|
| 5870 | | - | section, and it shall not be necessary for any covered entity to amend its |
|---|
| 5871 | | - | public organic documents or any other document to comply with this |
|---|
| 5872 | | - | section. |
|---|
| 5873 | | - | (c) As contained in any covered entity's organic documents or |
|---|
| 5874 | | - | other document filed with the secretary of state under the business |
|---|
| 5875 | | - | entity standard treatment act, the postal address of a registered office |
|---|
| 5876 | | - | shall include the street, number, city and postal code building and suite |
|---|
| 5877 | | - | number, street name or rural route number with box number, city, state |
|---|
| 5878 | | - | and zip code. |
|---|
| 5879 | | - | Sec. 63. K.S.A. 2022 Supp. 17-7929 is hereby amended to read as |
|---|
| 5880 | | - | follows: 17-7929. (a) The resident agent of one or more a covered |
|---|
| 5881 | | - | entities entity, including a resident agent that no longer qualifies to be |
|---|
| 5882 | | - | a resident agent under K.S.A. 2022 Supp. 17-7925, and amendments |
|---|
| 5883 | | - | thereto, may resign without appointing a successor by paying a fee if |
|---|
| 5884 | | - | authorized by law, as provided by K.S.A. 2022 Supp. 17-7910, and |
|---|
| 5885 | | - | amendments thereto, and filing a certificate of resignation, with the |
|---|
| 5886 | | - | secretary of state stating that the resident agent resigns as resident agent |
|---|
| 5887 | | - | for the covered entity or entities identified in the certificate, but such |
|---|
| 5888 | | - | resignation shall not become effective until 30 days after the certificate |
|---|
| 5889 | | - | is filed. The certificate shall be executed by the resident agent, shall |
|---|
| 5890 | | - | contain a statement that written notice of resignation was given to each |
|---|
| 5891 | | - | affected covered entity at least 30 days prior to the filing of the |
|---|
| 5892 | | - | certificate by mailing or delivering such notice to the covered entity at |
|---|
| 5893 | | - | its address last known to the resident agent and shall set forth the date |
|---|
| 5894 | | - | of such notice. The certificate shall also include the postal address and |
|---|
| 5895 | | - | name and contact information of an officer, director, employee or |
|---|
| 5896 | | - | designated agent who is then authorized to receive communications |
|---|
| 5897 | | - | from the resident agent with respect to the affected covered entities last |
|---|
| 5898 | | - | known to the resident agent, and such information shall not be deemed |
|---|
| 5899 | | - | public information and will not constitute a public record as defined in |
|---|
| 5900 | | - | K.S.A. 45-217, and amendments thereto. |
|---|
| 5901 | | - | (b) After receipt of the notice of the resignation of its resident |
|---|
| 5902 | | - | agent, provided for in subsection (a), any covered entity for which such |
|---|
| 5903 | | - | resident agent was acting shall obtain and designate a new resident |
|---|
| 5904 | | - | agent to take the place of the resident agent so resigning. Such covered |
|---|
| 5905 | | - | entity shall pay a fee if authorized by law, as provided by K.S.A. 2022 |
|---|
| 5906 | | - | Supp. 17-7910, and amendments thereto, and file with the secretary of |
|---|
| 5907 | | - | state a certificate setting forth the name and postal address of the |
|---|
| 5908 | | - | successor resident agent. Upon such filing, the successor resident agent |
|---|
| 5909 | | - | shall become the resident agent of such covered entity and the |
|---|
| 5910 | | - | successor resident agent's postal address, as stated in such certificate, |
|---|
| 5911 | | - | shall become the postal address of the covered entity's registered office |
|---|
| 5912 | | - | in this state. If such covered entity fails to obtain and designate a new |
|---|
| 5913 | | - | resident agent as aforesaid, prior to the expiration of the period of 60 |
|---|
| 5914 | | - | days after the filing by the resident agent of the certificate of |
|---|
| 5915 | | - | resignation, the secretary of state shall declare the entity's organizing |
|---|
| 5916 | | - | documents forfeited. |
|---|
| 5917 | | - | (c) After the resignation of the resident agent shall have become |
|---|
| 5918 | | - | effective, as provided in subsection (a), and if no new resident agent |
|---|
| 5919 | | - | shall have been obtained and designated in the time and manner |
|---|
| 5920 | | - | provided for in subsection (b), service of legal process against the |
|---|
| 5921 | | - | covered entity, or in the case of a domestic or foreign limited liability H Sub for SENATE BILL No. 244—page 101 |
|---|
| 5922 | | - | company, any series of such limited liability company, for which the |
|---|
| 5923 | | - | resigned resident agent had been acting shall thereafter be upon the |
|---|
| 5924 | | - | secretary of state in the manner prescribed by K.S.A. 60-304, and |
|---|
| 5925 | | - | amendments thereto. |
|---|
| 5926 | | - | (d) Any covered entity affected by the filing of a certificate under |
|---|
| 5927 | | - | this section shall not be required to take any further action to amend its |
|---|
| 5928 | | - | public organic documents to reflect a change of registered office or |
|---|
| 5929 | | - | resident agent. |
|---|
| 5930 | | - | Sec. 64. K.S.A. 2022 Supp. 17-7933 is hereby amended to read as |
|---|
| 5931 | | - | follows: 17-7933. (a) Except as otherwise provided in subsection (b), |
|---|
| 5932 | | - | the names of all foreign covered entities must be distinguishable on the |
|---|
| 5933 | | - | records of the office of the secretary of state from: |
|---|
| 5934 | | - | (1) The name of any covered entity or foreign covered entity; |
|---|
| 5935 | | - | (2) the name of any non-covered entity, other than a general |
|---|
| 5936 | | - | partnership, that has filed with the secretary of state, including a series |
|---|
| 5937 | | - | of a limited liability company for which a certificate of designation has |
|---|
| 5938 | | - | been filed; |
|---|
| 5939 | | - | (3) any entity name reserved pursuant to K.S.A. 2022 Supp. 17- |
|---|
| 5940 | | - | 7923, and amendments thereto; and |
|---|
| 5941 | | - | (4) the name of any other covered entity, series of a limited |
|---|
| 5942 | | - | liability company or foreign covered entity whose public organic |
|---|
| 5943 | | - | document, certificate of designation or foreign registration has been |
|---|
| 5944 | | - | canceled or forfeited for any reason within the previous one year. |
|---|
| 5945 | | - | (b) A foreign covered entity may register under any name that is |
|---|
| 5946 | | - | not distinguishable on the records of the office of the secretary of state |
|---|
| 5947 | | - | from the name of any other covered entity or non-covered entity that |
|---|
| 5948 | | - | has filed with the office of the secretary of state: |
|---|
| 5949 | | - | (1) With the written consent of the other entity, which written |
|---|
| 5950 | | - | consent shall be filed with the secretary of state on a form prescribed |
|---|
| 5951 | | - | by the secretary of state; or |
|---|
| 5952 | | - | (2) if the foreign covered entity indicates, as a means of |
|---|
| 5953 | | - | identification and in its advertising within this state, the state in which |
|---|
| 5954 | | - | the foreign covered entity was formed, and the application sets forth |
|---|
| 5955 | | - | this condition. |
|---|
| 5956 | | - | Sec. 65. K.S.A. 2022 Supp. 56-1a605 is hereby amended to read |
|---|
| 5957 | | - | as follows: 56-1a605. (a) The secretary of state shall charge each |
|---|
| 5958 | | - | domestic and foreign limited partnership the following fees: |
|---|
| 5959 | | - | (1) For issuing or filing and indexing any of the documents |
|---|
| 5960 | | - | described below, a fee of $20: |
|---|
| 5961 | | - | (A) A certificate of amendment of limited partnership; |
|---|
| 5962 | | - | (B) a restated certificate of limited partnership; |
|---|
| 5963 | | - | (C) a certificate of cancellation of limited partnership; |
|---|
| 5964 | | - | (D) a certificate of change of location of registered office or |
|---|
| 5965 | | - | registered agent; and |
|---|
| 5966 | | - | (E) any certificate, affidavit, agreement or any other paper |
|---|
| 5967 | | - | provided for in this act, for which no different fee is specifically |
|---|
| 5968 | | - | prescribed; |
|---|
| 5969 | | - | (2) for certified copies, a fee of $7.50 for each copy certified plus |
|---|
| 5970 | | - | a fee per page, if, regardless of whether the secretary of state supplies |
|---|
| 5971 | | - | the copies, in an amount fixed by the secretary of state and approved by |
|---|
| 5972 | | - | the director of accounts and reports for copies of corporate documents |
|---|
| 5973 | | - | under K.S.A. 45-204 and amendments thereto; |
|---|
| 5974 | | - | (3) for each certificate of good standing and certificate of fact |
|---|
| 5975 | | - | issued by the secretary of state, a fee of $7.50; |
|---|
| 5976 | | - | (4) for a report of record search, a fee of $5, but furnishing the |
|---|
| 5977 | | - | following information shall not be considered a record search and no |
|---|
| 5978 | | - | charge shall be made therefor: name of the limited partnership and the |
|---|
| 5979 | | - | postal address of its registered office; name and postal address of the |
|---|
| 5980 | | - | resident agent; the state of the limited partnership's formation; the date H Sub for SENATE BILL No. 244—page 102 |
|---|
| 5981 | | - | of filing of its certificate of limited partnership or business entity |
|---|
| 5982 | | - | information report; and date of expiration; and |
|---|
| 5983 | | - | (5) for photocopies of instrumentsa fee of $20 for a copy of an |
|---|
| 5984 | | - | instrument on file or prepared by the secretary of state's office and |
|---|
| 5985 | | - | which are not, whether or not the copy is certified, a fee per page in an |
|---|
| 5986 | | - | amount fixed by the secretary of state and approved by the director of |
|---|
| 5987 | | - | accounts and reports for copies of corporate documents under K.S.A. |
|---|
| 5988 | | - | 45-204 and amendments thereto. |
|---|
| 5989 | | - | (b) Every limited partnership hereafter formed in this state shall |
|---|
| 5990 | | - | pay to the secretary of state at the time of filing its certificate of limited |
|---|
| 5991 | | - | partnership, an application and recording fee of $150. |
|---|
| 5992 | | - | (c) At the time of filing its application to do business, every |
|---|
| 5993 | | - | foreign limited partnership shall pay to the secretary of state an |
|---|
| 5994 | | - | application and recording fee of $150. |
|---|
| 5995 | | - | (d) The secretary of state shall not charge any fees for the |
|---|
| 5996 | | - | documents or services described in this section upon an official request |
|---|
| 5997 | | - | by any agency of this state or of the United States, or by any officer or |
|---|
| 5998 | | - | employee thereof. |
|---|
| 5999 | | - | Sec. 66. K.S.A. 2022 Supp. 56-1a606 is hereby amended to read |
|---|
| 6000 | | - | as follows: 56-1a606. (a) Every limited partnership organized under the |
|---|
| 6001 | | - | laws of this state shall make a written business entity information report |
|---|
| 6002 | | - | to the secretary of state, stating the prescribed information concerning |
|---|
| 6003 | | - | the limited partnership at the close of business on the last day of its tax |
|---|
| 6004 | | - | period next preceding the date of filing. If the limited partnership's tax |
|---|
| 6005 | | - | period is other than the calendar year, it shall give notice of its different |
|---|
| 6006 | | - | tax period to the secretary of state prior to December 31 of the year it |
|---|
| 6007 | | - | commences the different tax period. |
|---|
| 6008 | | - | (b) The report shall be filed biennially, as determined by the year |
|---|
| 6009 | | - | that the limited partnership filed its formation documents. A limited |
|---|
| 6010 | | - | partnership that filed formation documents in an even-numbered year |
|---|
| 6011 | | - | shall file a report in each even-numbered year. A limited partnership |
|---|
| 6012 | | - | that filed formation documents in an odd-numbered year shall file a |
|---|
| 6013 | | - | report in each odd-numbered year. The report shall be filed after the |
|---|
| 6014 | | - | close of the limited partnership's tax period but not later than at the |
|---|
| 6015 | | - | time prescribed by law for filing the limited partnership's annual |
|---|
| 6016 | | - | Kansas income tax return. |
|---|
| 6017 | | - | (c) The report shall be made on a form prescribed by the secretary |
|---|
| 6018 | | - | of state and shall contain the following information: |
|---|
| 6019 | | - | (1) The name of the limited partnership; and |
|---|
| 6020 | | - | (2) a list of the partners owning at least 5% of the capital of the |
|---|
| 6021 | | - | partnership, with the postal address of each; and |
|---|
| 6022 | | - | (3) the location of the principal office, including the building and |
|---|
| 6023 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 6024 | | - | state and zip code. |
|---|
| 6025 | | - | (d) Every limited partnership subject to the provisions of this |
|---|
| 6026 | | - | section that is a limited agricultural partnership, as defined in K.S.A. |
|---|
| 6027 | | - | 17-5903, and amendments thereto, and that holds agricultural land, as |
|---|
| 6028 | | - | defined in K.S.A. 17-5903, and amendments thereto, within this state |
|---|
| 6029 | | - | shall show the following additional information on the report: |
|---|
| 6030 | | - | (1) The number of acres and location, listed by section, range, |
|---|
| 6031 | | - | township and county of each lot, tract or parcel of agricultural land in |
|---|
| 6032 | | - | this state owned or leased by the limited partnership; and |
|---|
| 6033 | | - | (2) whether any of the agricultural land held and reported under |
|---|
| 6034 | | - | paragraph (1) was acquired after July 1, 1981. |
|---|
| 6035 | | - | (e) The report shall be signed by the general partner or partners of |
|---|
| 6036 | | - | the limited partnership under penalty of perjury and forwarded to the |
|---|
| 6037 | | - | secretary of state. |
|---|
| 6038 | | - | (f) At the time of filing its business entity information report, the |
|---|
| 6039 | | - | limited partnership shall pay to the secretary of state a fee in an amount H Sub for SENATE BILL No. 244—page 103 |
|---|
| 6040 | | - | equal to $80, plus the amount specified in rules and regulations of the |
|---|
| 6041 | | - | secretary multiplied by the number of tax periods included in the |
|---|
| 6042 | | - | report. |
|---|
| 6043 | | - | (g) The provisions of K.S.A. 17-7509, and amendments thereto, |
|---|
| 6044 | | - | relating to penalties for failure of a corporation to file a business entity |
|---|
| 6045 | | - | information report or pay the required fee, and the provisions of K.S.A. |
|---|
| 6046 | | - | 17-7510(a), and amendments thereto, relating to forfeiture of a |
|---|
| 6047 | | - | domestic corporation's articles of incorporation for failure to file a |
|---|
| 6048 | | - | business entity information report or pay the required fee, shall be |
|---|
| 6049 | | - | applicable to the certificate of partnership of any limited partnership |
|---|
| 6050 | | - | which that fails to file its business entity information report or pay the |
|---|
| 6051 | | - | required fee within 90 days of the time prescribed in this section for |
|---|
| 6052 | | - | filing and paying the same or, in the case of a report filing and fee |
|---|
| 6053 | | - | received by mail, postmarked within 90 days of the time prescribed in |
|---|
| 6054 | | - | this section for filing and paying the same. Whenever the certificate of |
|---|
| 6055 | | - | partnership of a limited partnership is forfeited for failure to file a |
|---|
| 6056 | | - | business entity information report or to pay the required fee, the limited |
|---|
| 6057 | | - | partnership may be reinstated by filing a certificate of reinstatement, in |
|---|
| 6058 | | - | the manner and form to be prescribed by the secretary of state, and all |
|---|
| 6059 | | - | past due business entity information reports for the immediately |
|---|
| 6060 | | - | preceding 10 years, and payment to the secretary an amount equal to all |
|---|
| 6061 | | - | fees and any penalties due. The fee for filing a certificate of |
|---|
| 6062 | | - | reinstatement shall be the same as that prescribed by K.S.A. 17-7506, |
|---|
| 6063 | | - | and amendments thereto, for filing a certificate of reinstatement of a |
|---|
| 6064 | | - | corporation's articles of incorporation. |
|---|
| 6065 | | - | Sec. 67. K.S.A. 2022 Supp. 56-1a607 is hereby amended to read |
|---|
| 6066 | | - | as follows: 56-1a607. (a) Every foreign limited partnership shall make |
|---|
| 6067 | | - | a written business entity information report to the secretary of state, |
|---|
| 6068 | | - | stating the prescribed information concerning the limited partnership at |
|---|
| 6069 | | - | the close of business on the last day of its tax period next preceding the |
|---|
| 6070 | | - | date of filing. If the limited partnership's tax period is other than the |
|---|
| 6071 | | - | calendar year, it shall give notice of its different tax period to the |
|---|
| 6072 | | - | secretary of state prior to December 31 of the year it commences the |
|---|
| 6073 | | - | different tax period. |
|---|
| 6074 | | - | (b) The report shall be filed biennially, as determined by the year |
|---|
| 6075 | | - | that the foreign limited partnership filed its foreign limited partnership |
|---|
| 6076 | | - | application. A foreign limited partnership that filed its application in an |
|---|
| 6077 | | - | even-numbered year shall file a report in each even-numbered year. A |
|---|
| 6078 | | - | foreign limited partnership that filed its application in an odd-numbered |
|---|
| 6079 | | - | year shall file a report in each odd-numbered year. The report shall be |
|---|
| 6080 | | - | filed after the close of the limited partnership's tax period but not later |
|---|
| 6081 | | - | than at the time prescribed by law for filing the limited partnership's |
|---|
| 6082 | | - | annual Kansas income tax return. |
|---|
| 6083 | | - | (c) The report shall be made on a form prescribed by the secretary |
|---|
| 6084 | | - | of state and shall contain: |
|---|
| 6085 | | - | (1) The name of the limited partnership; and |
|---|
| 6086 | | - | (2) the location of the principal office, including the building and |
|---|
| 6087 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 6088 | | - | state and zip code. |
|---|
| 6089 | | - | (d) Every foreign limited partnership subject to the provisions of |
|---|
| 6090 | | - | this section that is a limited agricultural partnership, as defined in |
|---|
| 6091 | | - | K.S.A. 17-5903, and amendments thereto, and that holds agricultural |
|---|
| 6092 | | - | land, as defined in K.S.A. 17-5903, and amendments thereto, within |
|---|
| 6093 | | - | this state shall show the following additional information on the report: |
|---|
| 6094 | | - | (1) The number of acres and location, listed by section, range, |
|---|
| 6095 | | - | township and county of agricultural land in this state owned or leased |
|---|
| 6096 | | - | by the limited partnership; and |
|---|
| 6097 | | - | (2) whether any of the agricultural land held and reported under |
|---|
| 6098 | | - | paragraph (1) was acquired after July 1, 1981. H Sub for SENATE BILL No. 244—page 104 |
|---|
| 6099 | | - | (e) The report shall be signed by the general partner or partners of |
|---|
| 6100 | | - | the limited partnership under penalty of perjury and forwarded to the |
|---|
| 6101 | | - | secretary of state. |
|---|
| 6102 | | - | (f) At the time of filing its business entity information report, the |
|---|
| 6103 | | - | foreign limited partnership shall pay to the secretary of state a fee in an |
|---|
| 6104 | | - | amount equal to $80, plus the amount specified in rules and regulations |
|---|
| 6105 | | - | of the secretary multiplied by the number of tax periods included in the |
|---|
| 6106 | | - | report. |
|---|
| 6107 | | - | (g) The provisions of K.S.A. 17-7509, and amendments thereto, |
|---|
| 6108 | | - | relating to penalties for failure of a corporation to file a business entity |
|---|
| 6109 | | - | information report or pay the required fee, and the provisions of K.S.A. |
|---|
| 6110 | | - | 17-7510(b), and amendments thereto, relating to forfeiture of a foreign |
|---|
| 6111 | | - | corporation's authority to do business in this state for failure to file a |
|---|
| 6112 | | - | business entity information report or pay the required fee, shall be |
|---|
| 6113 | | - | applicable to the authority of any foreign limited partnership which |
|---|
| 6114 | | - | that fails to file its business entity information report or pay the |
|---|
| 6115 | | - | required fee within 90 days of the time prescribed in this section for |
|---|
| 6116 | | - | filing and paying the same or, in the case of a report filing and fee |
|---|
| 6117 | | - | received by mail, postmarked within 90 days of the time prescribed in |
|---|
| 6118 | | - | this section for filing and paying the same. Whenever the authority of a |
|---|
| 6119 | | - | foreign limited partnership to do business in this state is forfeited for |
|---|
| 6120 | | - | failure to file a business entity information report or to pay the required |
|---|
| 6121 | | - | fee, the foreign limited partnership's authority to do business in this |
|---|
| 6122 | | - | state may be reinstated by filing a certificate of reinstatement, in the |
|---|
| 6123 | | - | manner and form to be prescribed by the secretary of state, and all past |
|---|
| 6124 | | - | due business entity information reports for the immediately preceding |
|---|
| 6125 | | - | 10 years, and payment to the secretary of state an amount equal to all |
|---|
| 6126 | | - | fees and any penalties due. The fee for filing a certificate of |
|---|
| 6127 | | - | reinstatement shall be the same as that prescribed by K.S.A. 17-7506, |
|---|
| 6128 | | - | and amendments thereto, for filing a certificate of reinstatement of a |
|---|
| 6129 | | - | corporation's articles of incorporation. |
|---|
| 6130 | | - | Sec. 68. K.S.A. 56a-105 is hereby amended to read as follows: |
|---|
| 6131 | | - | 56a-105. (a) A statement may be filed in the office of the secretary of |
|---|
| 6132 | | - | state. A certified copy of a statement that is filed in an office in another |
|---|
| 6133 | | - | state may be filed in the office of the secretary of state. Any statement |
|---|
| 6134 | | - | may be filed by telefacsimile or electronic communication if the |
|---|
| 6135 | | - | telefacsimile or electronic communication is accompanied with the |
|---|
| 6136 | | - | appropriate fee and meets statutory requirements it shall be effective |
|---|
| 6137 | | - | upon its filing date. Each filing has the effect provided in this act with |
|---|
| 6138 | | - | respect to partnership property located in or transactions that occur in |
|---|
| 6139 | | - | this state. |
|---|
| 6140 | | - | (b) A certified copy of a statement that has been filed in the office |
|---|
| 6141 | | - | of the secretary of state and recorded in the office for recording |
|---|
| 6142 | | - | transfers of real property has the effect provided for recorded |
|---|
| 6143 | | - | statements in this act. A recorded statement that is not a certified copy |
|---|
| 6144 | | - | of a statement filed in the office of the secretary of state does not have |
|---|
| 6145 | | - | the effect provided for recorded statements in this act. |
|---|
| 6146 | | - | (c) A statement filed by a partnership must be executed by at least |
|---|
| 6147 | | - | two partners. Other statements must be executed by a partner or other |
|---|
| 6148 | | - | person authorized by this act. An individual who executes a statement |
|---|
| 6149 | | - | as, or on behalf of, a partner or other person named as a partner in a |
|---|
| 6150 | | - | statement shall personally declare under penalty of perjury that the |
|---|
| 6151 | | - | contents of the statement are accurate. |
|---|
| 6152 | | - | (d) A person authorized by this act to file a statement may amend |
|---|
| 6153 | | - | or cancel the statement by filing an amendment or cancellation that |
|---|
| 6154 | | - | names the partnership, identifies the statement, and states the substance |
|---|
| 6155 | | - | of the amendment or cancellation. |
|---|
| 6156 | | - | (e) A person who files a statement pursuant to this section shall |
|---|
| 6157 | | - | promptly send a copy of the statement to every nonfiling partner and to H Sub for SENATE BILL No. 244—page 105 |
|---|
| 6158 | | - | any other person named as a partner in the statement. Failure to send a |
|---|
| 6159 | | - | copy of a statement to a partner or other person does not limit the |
|---|
| 6160 | | - | effectiveness of the statement as to a person not a partner. |
|---|
| 6161 | | - | (f) The secretary of state may collect a fee for filing or providing a |
|---|
| 6162 | | - | certified copy of a statement. The officer responsible for recording |
|---|
| 6163 | | - | transfers of real property may collect a fee for recording a statement. |
|---|
| 6164 | | - | (g) The secretary of state shall set by rules and regulations any |
|---|
| 6165 | | - | fees provided by this act. |
|---|
| 6166 | | - | (h) The secretary of state shall prescribe a telefacsimile or |
|---|
| 6167 | | - | electronic communication fee in addition to any filing fees to cover the |
|---|
| 6168 | | - | costs of the services. The fee must be paid prior to acceptance of a |
|---|
| 6169 | | - | telefacsimile communication under this section. The telefacsimile or |
|---|
| 6170 | | - | electronic communication fee shall be deposited into the information |
|---|
| 6171 | | - | and copy fee fund. As used in this section, telefacsimile or electronic |
|---|
| 6172 | | - | communication means the use of electronic equipment to send or |
|---|
| 6173 | | - | transfer a document, including as an attachment to electronic mail or |
|---|
| 6174 | | - | direct upload. |
|---|
| 6175 | | - | (i) Any signature on documents authorized to be filed with the |
|---|
| 6176 | | - | secretary of state under the provisions of this chapter may be a |
|---|
| 6177 | | - | facsimile, a conformed signature, an electronic signature or an |
|---|
| 6178 | | - | electronically transmitted signature. |
|---|
| 6179 | | - | Sec. 69. K.S.A. 2022 Supp. 56a-1201 is hereby amended to read |
|---|
| 6180 | | - | as follows: 56a-1201. (a) Every limited liability partnership organized |
|---|
| 6181 | | - | under the laws of this state shall make a written business entity |
|---|
| 6182 | | - | information report to the secretary of state, stating the prescribed |
|---|
| 6183 | | - | information concerning the limited liability partnership at the close of |
|---|
| 6184 | | - | business on the last day of its tax period next preceding the date of |
|---|
| 6185 | | - | filing. If the limited liability partnership's tax period is other than the |
|---|
| 6186 | | - | calendar year, it shall give notice of its different tax period in writing to |
|---|
| 6187 | | - | the secretary of state prior to December 31 of the year it commences |
|---|
| 6188 | | - | the different tax period. |
|---|
| 6189 | | - | (b) The report shall be filed biennially, as determined by the year |
|---|
| 6190 | | - | that the limited liability partnership filed its limited liability partnership |
|---|
| 6191 | | - | formation documents. A limited liability partnership that filed |
|---|
| 6192 | | - | formation documents in an even-numbered year shall file a report in |
|---|
| 6193 | | - | each even-numbered year. A limited liability partnership that filed |
|---|
| 6194 | | - | formation documents in an odd-numbered year shall file a report in |
|---|
| 6195 | | - | each odd-numbered year. The report shall be filed after the close of the |
|---|
| 6196 | | - | limited liability partnership's tax period but not later than at the time |
|---|
| 6197 | | - | prescribed by law for filing the limited liability partnership's annual |
|---|
| 6198 | | - | Kansas income tax return. |
|---|
| 6199 | | - | (c) The report shall be made on a form prescribed by the secretary |
|---|
| 6200 | | - | of state and shall contain the following information: |
|---|
| 6201 | | - | (1) The name of the limited liability partnership; and |
|---|
| 6202 | | - | (2) a list of the partners owning at least 5% of the capital of the |
|---|
| 6203 | | - | partnership, with the postal address of for each; and |
|---|
| 6204 | | - | (3) the location of the principal office, including the building and |
|---|
| 6205 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 6206 | | - | state and zip code. |
|---|
| 6207 | | - | (d) The report shall be signed by a partner of the limited liability |
|---|
| 6208 | | - | partnership under penalty of perjury and forwarded to the secretary of |
|---|
| 6209 | | - | state. |
|---|
| 6210 | | - | (e) At the time of filing its business entity information report, the |
|---|
| 6211 | | - | limited liability partnership shall pay to the secretary of state a fee in an |
|---|
| 6212 | | - | amount equal to $80, plus the amount specified in rules and regulations |
|---|
| 6213 | | - | of the secretary multiplied by the number of tax periods included in the |
|---|
| 6214 | | - | report. |
|---|
| 6215 | | - | (f) The provisions of K.S.A. 17-7509, and amendments thereto, |
|---|
| 6216 | | - | relating to penalties for failure of a corporation to file a business entity H Sub for SENATE BILL No. 244—page 106 |
|---|
| 6217 | | - | information report or pay the required fee, and the provisions of K.S.A. |
|---|
| 6218 | | - | 17-7510(a), and amendments thereto, relating to penalties for failure of |
|---|
| 6219 | | - | a corporation to file a business entity information report or pay the |
|---|
| 6220 | | - | required fee, shall be applicable to the statement of qualification of any |
|---|
| 6221 | | - | limited liability partnership that fails to file its business entity |
|---|
| 6222 | | - | information report or pay the required fee within 90 days of the time |
|---|
| 6223 | | - | prescribed in this section for filing and paying the same or, in the case |
|---|
| 6224 | | - | of a report filing and fee received by mail, postmarked within 90 days |
|---|
| 6225 | | - | of the time prescribed in this section for filing and paying the same. |
|---|
| 6226 | | - | Whenever the statement of qualification of a limited liability |
|---|
| 6227 | | - | partnership is forfeited for failure to file a business entity information |
|---|
| 6228 | | - | report or to pay the required fee, the limited liability partnership may be |
|---|
| 6229 | | - | reinstated by filing a certificate of reinstatement, in the manner and |
|---|
| 6230 | | - | form to be prescribed by the secretary of state, and all past due business |
|---|
| 6231 | | - | entity information reports for the immediately preceding 10 years, and |
|---|
| 6232 | | - | payment to the secretary an amount equal to all fees and any penalties |
|---|
| 6233 | | - | due. The fee for filing a certificate of reinstatement shall be the same as |
|---|
| 6234 | | - | that prescribed by K.S.A. 17-7506, and amendments thereto, for filing |
|---|
| 6235 | | - | a certificate of reinstatement of a corporation's articles of incorporation. |
|---|
| 6236 | | - | Sec. 70. K.S.A. 2022 Supp. 56a-1202 is hereby amended to read |
|---|
| 6237 | | - | as follows: 56a-1202. (a) Every foreign limited liability partnership |
|---|
| 6238 | | - | shall make a written business entity information report to the secretary |
|---|
| 6239 | | - | of state, stating the prescribed information concerning the foreign |
|---|
| 6240 | | - | limited liability partnership at the close of business on the last day of its |
|---|
| 6241 | | - | tax period next preceding the date of filing. If the foreign limited |
|---|
| 6242 | | - | liability partnership's tax period is other than the calendar year, it shall |
|---|
| 6243 | | - | give notice in writing of its different tax period to the secretary of state |
|---|
| 6244 | | - | prior to December 31 of the year it commences the different tax period. |
|---|
| 6245 | | - | (b) The report shall be filed biennially, as determined by the year |
|---|
| 6246 | | - | that the foreign limited liability partnership filed its foreign limited |
|---|
| 6247 | | - | liability partnership application. A foreign limited liability partnership |
|---|
| 6248 | | - | that filed its application in an even-numbered year shall file a report in |
|---|
| 6249 | | - | each even-numbered year. A foreign limited liability partnership that |
|---|
| 6250 | | - | filed its application in an odd-numbered year shall file a report in each |
|---|
| 6251 | | - | odd-numbered year. The report shall be filed after the close of the |
|---|
| 6252 | | - | foreign limited liability partnership's tax period but not later than at the |
|---|
| 6253 | | - | time prescribed by law for filing the foreign limited liability |
|---|
| 6254 | | - | partnership's annual Kansas income tax return. |
|---|
| 6255 | | - | (c) The report shall be made on a form prescribed by the secretary |
|---|
| 6256 | | - | of state and shall contain: |
|---|
| 6257 | | - | (1) The name of the foreign limited liability partnership; and |
|---|
| 6258 | | - | (2) the location of the principal office, including the building and |
|---|
| 6259 | | - | suite number, street name or rural route number with box number, city, |
|---|
| 6260 | | - | state and zip code. |
|---|
| 6261 | | - | (d) The report shall be signed by a partner of the foreign limited |
|---|
| 6262 | | - | liability partnership under penalty of perjury and forwarded to the |
|---|
| 6263 | | - | secretary of state. |
|---|
| 6264 | | - | (e) At the time of filing its business entity information report, the |
|---|
| 6265 | | - | foreign limited liability partnership shall pay to the secretary of state a |
|---|
| 6266 | | - | fee in an amount equal to $80, plus the amount specified in rules and |
|---|
| 6267 | | - | regulations of the secretary multiplied by the number of tax periods |
|---|
| 6268 | | - | included in the report. |
|---|
| 6269 | | - | (f) The provisions of K.S.A. 17-7509, and amendments thereto, |
|---|
| 6270 | | - | relating to penalties for failure of a corporation to file a business entity |
|---|
| 6271 | | - | information report or pay the required fee, and the provisions of K.S.A. |
|---|
| 6272 | | - | 17-7510(a), and amendments thereto, relating to penalties for failure of |
|---|
| 6273 | | - | a corporation to file a business entity information report or pay the |
|---|
| 6274 | | - | required fee, shall be applicable to the statement of foreign |
|---|
| 6275 | | - | qualification of any foreign limited liability partnership that fails to file H Sub for SENATE BILL No. 244—page 107 |
|---|
| 6276 | | - | its business entity information report or pay the required fee within 90 |
|---|
| 6277 | | - | days of the time prescribed in this section for filing and paying the |
|---|
| 6278 | | - | same or, in the case of a report filing and fee received by mail, |
|---|
| 6279 | | - | postmarked within 90 days of the time prescribed in this section for |
|---|
| 6280 | | - | filing and paying the same. Whenever the statement of foreign |
|---|
| 6281 | | - | qualification of a foreign limited liability partnership is forfeited for |
|---|
| 6282 | | - | failure to file a business entity information report or to pay the required |
|---|
| 6283 | | - | fee, the statement of foreign qualification of the foreign limited liability |
|---|
| 6284 | | - | partnership may be reinstated by filing a certificate of reinstatement, in |
|---|
| 6285 | | - | the manner and form to be prescribed by the secretary of state, and all |
|---|
| 6286 | | - | past due business entity information reports for the immediately |
|---|
| 6287 | | - | preceding 10 years, and payment to the secretary of state an amount |
|---|
| 6288 | | - | equal to all fees and any penalties due. The fee for filing a certificate of |
|---|
| 6289 | | - | reinstatement shall be the same as that prescribed by K.S.A. 17-7506, |
|---|
| 6290 | | - | and amendments thereto, for filing a certificate of reinstatement of a |
|---|
| 6291 | | - | corporation's articles of incorporation. |
|---|
| 6292 | | - | Sec. 71. K.S.A. 79-1119 is hereby amended to read as follows: 79- |
|---|
| 6293 | | - | 1119. (a) All reports, statements, lists and returns required under the |
|---|
| 6294 | | - | provisions of article 11 of chapter 79 of the Kansas Statutes Annotated, |
|---|
| 6295 | | - | and amendments thereto, shall be preserved for three years and |
|---|
| 6296 | | - | thereafter until the director of taxation orders them to be destroyed. |
|---|
| 6297 | | - | (b) Except in accordance with proper judicial order, or as provided |
|---|
| 6298 | | - | in subsection (c) of this section, subsection (g) of K.S.A. 17-7511 or |
|---|
| 6299 | | - | K.S.A. 46-1106, and amendments thereto, it shall be unlawful for the |
|---|
| 6300 | | - | director of taxation, or any deputy, agent, clerk or other officer, |
|---|
| 6301 | | - | employee or former employee of the department of revenue or any |
|---|
| 6302 | | - | other state officer or employee or former state officer or employee to |
|---|
| 6303 | | - | divulge, or to make known in any way, the amount of income or any |
|---|
| 6304 | | - | particulars set forth or disclosed in any report, statement, list, return, |
|---|
| 6305 | | - | federal return or federal return information required under the |
|---|
| 6306 | | - | provisions of article 11 of chapter 79 of the Kansas Statutes Annotated, |
|---|
| 6307 | | - | and amendments thereto; and it shall be unlawful for the director of |
|---|
| 6308 | | - | taxation, or any deputy, agent, clerk or other officer or employee of the |
|---|
| 6309 | | - | department of revenue engaged in the administration of the tax imposed |
|---|
| 6310 | | - | under the provisions of article 11 of chapter 79 of the Kansas Statutes |
|---|
| 6311 | | - | Annotated, and amendments thereto, to engage in the business or |
|---|
| 6312 | | - | profession of tax accounting or to accept employment, with or without |
|---|
| 6313 | | - | consideration, for any person, firm or corporation for the purpose, |
|---|
| 6314 | | - | directly or indirectly, or preparing tax returns or reports required by the |
|---|
| 6315 | | - | laws of the state of Kansas, by any other state or by the United States |
|---|
| 6316 | | - | government, or to accept any employment for the purpose of advising, |
|---|
| 6317 | | - | preparing material or data, or the auditing of books or records to be |
|---|
| 6318 | | - | used in an effort to defeat or cancel any tax or part thereof that has been |
|---|
| 6319 | | - | assessed by the state of Kansas, any other state or by the United States |
|---|
| 6320 | | - | government. |
|---|
| 6321 | | - | (c) The secretary or the secretary's designee may: |
|---|
| 6322 | | - | (1) Publish statistics, so classified as to prevent the identification |
|---|
| 6323 | | - | of particular reports or returns and the items thereof; |
|---|
| 6324 | | - | (2) allow the inspection of returns by the attorney general or other |
|---|
| 6325 | | - | legal representatives of the state; |
|---|
| 6326 | | - | (3) provide the post auditor access to all statements, lists, reports |
|---|
| 6327 | | - | or returns in accordance with and subject to the provisions of |
|---|
| 6328 | | - | subsection (g) of K.S.A. 46-1106(g), and amendments thereto; or |
|---|
| 6329 | | - | (4) disclose to the secretary of commerce specific taxpayer |
|---|
| 6330 | | - | information related to financial information previously submitted by |
|---|
| 6331 | | - | the taxpayer to the secretary of commerce concerning or relevant to any |
|---|
| 6332 | | - | privilege tax credits, for purposes of verification of such information or |
|---|
| 6333 | | - | evaluating the effectiveness of any tax credit program administered by |
|---|
| 6334 | | - | the secretary of commerce. H Sub for SENATE BILL No. 244—page 108 |
|---|
| 6335 | | - | (d) Any person receiving information under the provisions of |
|---|
| 6336 | | - | subsection (c) shall be subject to the confidentiality provisions of |
|---|
| 6337 | | - | subsection (b) and to the penalty provisions of subsection (e). |
|---|
| 6338 | | - | (e) Any violation of subsections subsection (b) or (c) of this |
|---|
| 6339 | | - | section shall be a class A misdemeanor; and if the offender be an officer |
|---|
| 6340 | | - | or employee of the state, such officer or employee shall be dismissed |
|---|
| 6341 | | - | from office. |
|---|
| 6342 | | - | (f) Notwithstanding the provisions of this section, the secretary of |
|---|
| 6343 | | - | revenue may, in his or her discretion, permit the commissioner of |
|---|
| 6344 | | - | internal revenue of the United States, or the proper official of any state |
|---|
| 6345 | | - | imposing an income tax or privilege tax on financial institutions, or the |
|---|
| 6346 | | - | authorized representative of either, to inspect the reports, statements, |
|---|
| 6347 | | - | lists or returns made under the provisions of article 11 of chapter 79 of |
|---|
| 6348 | | - | the Kansas Statutes Annotated, and amendments thereto, and the |
|---|
| 6349 | | - | secretary of revenue may make available or furnish to the taxing |
|---|
| 6350 | | - | officials of any other state or the commissioner of internal revenue of |
|---|
| 6351 | | - | the United States or other taxing officials of the federal government, or |
|---|
| 6352 | | - | their authorized representatives, information contained in statements, |
|---|
| 6353 | | - | lists, reports, or returns or any audit thereof or the report of any |
|---|
| 6354 | | - | investigation made with respect thereto, filed pursuant to any of the |
|---|
| 6355 | | - | provisions of article 11 of chapter 79 of the Kansas Statutes Annotated, |
|---|
| 6356 | | - | and amendments thereto, as the secretary may consider proper, but such |
|---|
| 6357 | | - | information shall not be used for any other purpose than that of the |
|---|
| 6358 | | - | administration of tax laws of such state or of the United States. |
|---|
| 6359 | | - | Sec. 72. K.S.A. 2022 Supp. 79-3234 is hereby amended to read as |
|---|
| 6360 | | - | follows: 79-3234. (a) All reports and returns required by this act shall |
|---|
| 6361 | | - | be preserved for three years and thereafter until the director orders them |
|---|
| 6362 | | - | to be destroyed. |
|---|
| 6363 | | - | (b) Except in accordance with proper judicial order, or as provided |
|---|
| 6364 | | - | in subsection (c) or in K.S.A. 17-7511, K.S.A. 46-1106(e), 46-1114, or |
|---|
| 6365 | | - | 79-32,153a, and amendments thereto, it shall be unlawful for the |
|---|
| 6366 | | - | secretary, the director, any deputy, agent, clerk or other officer, |
|---|
| 6367 | | - | employee or former employee of the department of revenue or any |
|---|
| 6368 | | - | other state officer or employee or former state officer or employee to |
|---|
| 6369 | | - | divulge, or to make known in any way, the amount of income or any |
|---|
| 6370 | | - | particulars set forth or disclosed in any report, return, federal return or |
|---|
| 6371 | | - | federal return information required under this act; and it shall be |
|---|
| 6372 | | - | unlawful for the secretary, the director, any deputy, agent, clerk or other |
|---|
| 6373 | | - | officer or employee engaged in the administration of this act to engage |
|---|
| 6374 | | - | in the business or profession of tax accounting or to accept |
|---|
| 6375 | | - | employment, with or without consideration, from any person, firm or |
|---|
| 6376 | | - | corporation for the purpose, directly or indirectly, of preparing tax |
|---|
| 6377 | | - | returns or reports required by the laws of the state of Kansas, by any |
|---|
| 6378 | | - | other state or by the United States government, or to accept any |
|---|
| 6379 | | - | employment for the purpose of advising, preparing material or data, or |
|---|
| 6380 | | - | the auditing of books or records to be used in an effort to defeat or |
|---|
| 6381 | | - | cancel any tax or part thereof that has been assessed by the state of |
|---|
| 6382 | | - | Kansas, any other state or by the United States government. |
|---|
| 6383 | | - | (c) The secretary or the secretary's designee may: |
|---|
| 6384 | | - | (1) Publish statistics, so classified as to prevent the identification |
|---|
| 6385 | | - | of particular reports or returns and the items thereof; |
|---|
| 6386 | | - | (2) allow the inspection of returns by the attorney general or other |
|---|
| 6387 | | - | legal representatives of the state; |
|---|
| 6388 | | - | (3) provide the post auditor access to all income tax reports or |
|---|
| 6389 | | - | returns in accordance with and subject to the provisions of K.S.A. 46- |
|---|
| 6390 | | - | 1106(e) or 46-1114, and amendments thereto; |
|---|
| 6391 | | - | (4) disclose taxpayer information from income tax returns to |
|---|
| 6392 | | - | persons or entities contracting with the secretary of revenue where the |
|---|
| 6393 | | - | secretary has determined disclosure of such information is essential for H Sub for SENATE BILL No. 244—page 109 |
|---|
| 6394 | | - | completion of the contract and has taken appropriate steps to preserve |
|---|
| 6395 | | - | confidentiality; |
|---|
| 6396 | | - | (5) disclose to the secretary of commerce the following: (A) |
|---|
| 6397 | | - | Specific taxpayer information related to financial information |
|---|
| 6398 | | - | previously submitted by the taxpayer to the secretary of commerce |
|---|
| 6399 | | - | concerning or relevant to any income tax credits, for purposes of |
|---|
| 6400 | | - | verification of such information or evaluating the effectiveness of any |
|---|
| 6401 | | - | tax credit or economic incentive program administered by the secretary |
|---|
| 6402 | | - | of commerce; (B) the amount of payroll withholding taxes an employer |
|---|
| 6403 | | - | is retaining pursuant to K.S.A. 74-50,212, and amendments thereto; (C) |
|---|
| 6404 | | - | information received from businesses completing the form required by |
|---|
| 6405 | | - | K.S.A. 74-50,217, and amendments thereto; and (D) findings related to |
|---|
| 6406 | | - | a compliance audit conducted by the department of revenue upon the |
|---|
| 6407 | | - | request of the secretary of commerce pursuant to K.S.A. 74-50,215, |
|---|
| 6408 | | - | and amendments thereto; |
|---|
| 6409 | | - | (6) disclose income tax returns to the state gaming agency to be |
|---|
| 6410 | | - | used solely for the purpose of determining qualifications of licensees of |
|---|
| 6411 | | - | and applicants for licensure in tribal gaming. Any information received |
|---|
| 6412 | | - | by the state gaming agency shall be confidential and shall not be |
|---|
| 6413 | | - | disclosed except to the executive director, employees of the state |
|---|
| 6414 | | - | gaming agency and members and employees of the tribal gaming |
|---|
| 6415 | | - | commission; |
|---|
| 6416 | | - | (7) disclose the taxpayer's name, last known address and residency |
|---|
| 6417 | | - | status to the Kansas department of wildlife, parks and tourism to be |
|---|
| 6418 | | - | used solely in its license fraud investigations; |
|---|
| 6419 | | - | (8) disclose the name, residence address, employer or Kansas |
|---|
| 6420 | | - | adjusted gross income of a taxpayer who may have a duty of support in |
|---|
| 6421 | | - | a title IV-D case to the secretary of the Kansas department for children |
|---|
| 6422 | | - | and families for use solely in administrative or judicial proceedings to |
|---|
| 6423 | | - | establish, modify or enforce such support obligation in a title IV-D |
|---|
| 6424 | | - | case. In addition to any other limits on use, such use shall be allowed |
|---|
| 6425 | | - | only where subject to a protective order which prohibits disclosure |
|---|
| 6426 | | - | outside of the title IV-D proceeding. As used in this section, "title IV-D |
|---|
| 6427 | | - | case" means a case being administered pursuant to part D of title IV of |
|---|
| 6428 | | - | the federal social security act, 42 U.S.C. § 651 et seq., and amendments |
|---|
| 6429 | | - | thereto. Any person receiving any information under the provisions of |
|---|
| 6430 | | - | this subsection shall be subject to the confidentiality provisions of |
|---|
| 6431 | | - | subsection (b) and to the penalty provisions of subsection (e); |
|---|
| 6432 | | - | (9) permit the commissioner of internal revenue of the United |
|---|
| 6433 | | - | States, or the proper official of any state imposing an income tax, or the |
|---|
| 6434 | | - | authorized representative of either, to inspect the income tax returns |
|---|
| 6435 | | - | made under this act and the secretary of revenue may make available or |
|---|
| 6436 | | - | furnish to the taxing officials of any other state or the commissioner of |
|---|
| 6437 | | - | internal revenue of the United States or other taxing officials of the |
|---|
| 6438 | | - | federal government, or their authorized representatives, information |
|---|
| 6439 | | - | contained in income tax reports or returns or any audit thereof or the |
|---|
| 6440 | | - | report of any investigation made with respect thereto, filed pursuant to |
|---|
| 6441 | | - | the income tax laws, as the secretary may consider proper, but such |
|---|
| 6442 | | - | information shall not be used for any other purpose than that of the |
|---|
| 6443 | | - | administration of tax laws of such state, the state of Kansas or of the |
|---|
| 6444 | | - | United States; |
|---|
| 6445 | | - | (10) communicate to the executive director of the Kansas lottery |
|---|
| 6446 | | - | information as to whether a person, partnership or corporation is |
|---|
| 6447 | | - | current in the filing of all applicable tax returns and in the payment of |
|---|
| 6448 | | - | all taxes, interest and penalties to the state of Kansas, excluding items |
|---|
| 6449 | | - | under formal appeal, for the purpose of determining whether such |
|---|
| 6450 | | - | person, partnership or corporation is eligible to be selected as a lottery |
|---|
| 6451 | | - | retailer; |
|---|
| 6452 | | - | (11) communicate to the executive director of the Kansas racing H Sub for SENATE BILL No. 244—page 110 |
|---|
| 6453 | | - | commission as to whether a person, partnership or corporation has |
|---|
| 6454 | | - | failed to meet any tax obligation to the state of Kansas for the purpose |
|---|
| 6455 | | - | of determining whether such person, partnership or corporation is |
|---|
| 6456 | | - | eligible for a facility owner license or facility manager license pursuant |
|---|
| 6457 | | - | to the Kansas parimutuel racing act; |
|---|
| 6458 | | - | (12) provide such information to the executive director of the |
|---|
| 6459 | | - | Kansas public employees retirement system for the purpose of |
|---|
| 6460 | | - | determining that certain individuals' reported compensation is in |
|---|
| 6461 | | - | compliance with the Kansas public employees retirement act, K.S.A. |
|---|
| 6462 | | - | 74-4901 et seq., and amendments thereto; |
|---|
| 6463 | | - | (13) (A) provide taxpayer information of persons suspected of |
|---|
| 6464 | | - | violating K.S.A. 44-766, and amendments thereto, to the secretary of |
|---|
| 6465 | | - | labor or such secretary's designee for the purpose of determining |
|---|
| 6466 | | - | compliance by any person with the provisions of K.S.A. 44-703(i)(3) |
|---|
| 6467 | | - | (D) and 44-766, and amendments thereto. The information to be |
|---|
| 6468 | | - | provided shall include all relevant information in the possession of the |
|---|
| 6469 | | - | department of revenue necessary for the secretary of labor to make a |
|---|
| 6470 | | - | proper determination of compliance with the provisions of K.S.A. 44- |
|---|
| 6471 | | - | 703(i)(3)(D) and 44-766, and amendments thereto, and to calculate any |
|---|
| 6472 | | - | unemployment contribution taxes due. Such information to be provided |
|---|
| 6473 | | - | by the department of revenue shall include, but not be limited to, |
|---|
| 6474 | | - | withholding tax and payroll information, the identity of any person that |
|---|
| 6475 | | - | has been or is currently being audited or investigated in connection |
|---|
| 6476 | | - | with the administration and enforcement of the withholding and |
|---|
| 6477 | | - | declaration of estimated tax act, K.S.A. 79-3294 et seq., and |
|---|
| 6478 | | - | amendments thereto, and the results or status of such audit or |
|---|
| 6479 | | - | investigation; |
|---|
| 6480 | | - | (B) any person receiving tax information under the provisions of |
|---|
| 6481 | | - | this paragraph shall be subject to the same duty of confidentiality |
|---|
| 6482 | | - | imposed by law upon the personnel of the department of revenue and |
|---|
| 6483 | | - | shall be subject to any civil or criminal penalties imposed by law for |
|---|
| 6484 | | - | violations of such duty of confidentiality; and |
|---|
| 6485 | | - | (C) each of the secretary of labor and the secretary of revenue may |
|---|
| 6486 | | - | adopt rules and regulations necessary to effect the provisions of this |
|---|
| 6487 | | - | paragraph; |
|---|
| 6488 | | - | (14) provide such information to the state treasurer for the sole |
|---|
| 6489 | | - | purpose of carrying out the provisions of K.S.A. 58-3934, and |
|---|
| 6490 | | - | amendments thereto. Such information shall be limited to current and |
|---|
| 6491 | | - | prior addresses of taxpayers or associated persons who may have |
|---|
| 6492 | | - | knowledge as to the location of an owner of unclaimed property. For |
|---|
| 6493 | | - | the purposes of this paragraph, "associated persons" includes spouses |
|---|
| 6494 | | - | or dependents listed on income tax returns; |
|---|
| 6495 | | - | (15) after receipt of information pursuant to subsection (f), |
|---|
| 6496 | | - | forward such information and provide the following reported Kansas |
|---|
| 6497 | | - | individual income tax information for each listed defendant, if |
|---|
| 6498 | | - | available, to the state board of indigents' defense services in an |
|---|
| 6499 | | - | electronic format and in the manner determined by the secretary: (A) |
|---|
| 6500 | | - | The defendant's name; (B) social security number; (C) Kansas adjusted |
|---|
| 6501 | | - | gross income; (D) number of exemptions claimed; and (E) the relevant |
|---|
| 6502 | | - | tax year of such records. Any social security number provided to the |
|---|
| 6503 | | - | secretary and the state board of indigents' defense services pursuant to |
|---|
| 6504 | | - | this section shall remain confidential; and |
|---|
| 6505 | | - | (16) disclose taxpayer information that is received from income |
|---|
| 6506 | | - | tax returns to the department of commerce that may be disclosed |
|---|
| 6507 | | - | pursuant to the provisions of K.S.A. 2022 Supp. 74-50,227, and |
|---|
| 6508 | | - | amendments thereto, for the purpose of including such information in |
|---|
| 6509 | | - | the database required by K.S.A. 2022 Supp. 74-50,227, and |
|---|
| 6510 | | - | amendments thereto. |
|---|
| 6511 | | - | (d) Any person receiving information under the provisions of H Sub for SENATE BILL No. 244—page 111 |
|---|
| 6512 | | - | subsection (c) shall be subject to the confidentiality provisions of |
|---|
| 6513 | | - | subsection (b) and to the penalty provisions of subsection (e). |
|---|
| 6514 | | - | (e) Any violation of subsection (b) or (c) is a class A nonperson |
|---|
| 6515 | | - | misdemeanor and, if the offender is an officer or employee of the state, |
|---|
| 6516 | | - | such officer or employee shall be dismissed from office. |
|---|
| 6517 | | - | (f) For the purpose of determining whether a defendant is |
|---|
| 6518 | | - | financially able to employ legal counsel under the provisions of K.S.A. |
|---|
| 6519 | | - | 22-4504, and amendments thereto, in all felony cases with appointed |
|---|
| 6520 | | - | counsel where the defendant's social security number is accessible from |
|---|
| 6521 | | - | the records of the district court, the court shall electronically provide |
|---|
| 6522 | | - | the defendant's name, social security number, district court case number |
|---|
| 6523 | | - | and county to the secretary of revenue in the manner and format agreed |
|---|
| 6524 | | - | to by the office of judicial administration and the secretary. |
|---|
| 6525 | | - | (g) Nothing in this section shall be construed to allow disclosure |
|---|
| 6526 | | - | of the amount of income or any particulars set forth or disclosed in any |
|---|
| 6527 | | - | report, return, federal return or federal return information, where such |
|---|
| 6528 | | - | disclosure is prohibited by the federal internal revenue code as in effect |
|---|
| 6529 | | - | on September 1, 1996, and amendments thereto, related federal internal |
|---|
| 6530 | | - | revenue rules or regulations, or other federal law. |
|---|
| 6531 | | - | Sec. 73. K.S.A. 17-6520, 17-7514, 56-1a608, 56-1a610, 56a-105, |
|---|
| 6532 | | - | 56a-1203, 56a-1204 and 79-1119 and K.S.A. 2022 Supp. 17-2036, 17- |
|---|
| 6533 | | - | 2718, 17-4634, 17-4677, 17-6002, 17-6004, 17-6008, 17-6010, 17- |
|---|
| 6534 | | - | 6011, 17-6014, 17-6301, 17-6305, 17-6401, 17-6408, 17-6410, 17- |
|---|
| 6535 | | - | 6413, 17-6426, 17-6427, 17-6428, 17-6502, 17-6503, 17-6509, 17- |
|---|
| 6536 | | - | 6512, 17-6514, 17-6518, 17-6522, 17-6701, 17-6702, 17-6703, 17- |
|---|
| 6537 | | - | 6705, 17-6706, 17-6707, 17-6708, 17-6712, 17-6804, 17-6812, 17- |
|---|
| 6538 | | - | 7001, 17-7002, 17-7003, 17-72a04, 17-72a05, 17-72a07, 17-7302, 17- |
|---|
| 6539 | | - | 7503, 17-7504, 17-7505, 17-7506, 17-7511, 17-76,136, 17-76,139, 17- |
|---|
| 6540 | | - | 78-102, 17-78-202, 17-78-203, 17-78-205, 17-78-302, 17-78-606, 17- |
|---|
| 6541 | | - | 7914, 17-7918, 17-7919, 17-7924, 17-7929, 17-7933, 56-1a605, 56- |
|---|
| 6542 | | - | 1a606, 56-1a607, 56a-1201, 56a-1202 and 79-3234 are hereby |
|---|
| 6543 | | - | repealed. |
|---|
| 6544 | | - | Sec. 74. On and after January 1, 2024, K.S.A. 2022 Supp. 17- |
|---|
| 6545 | | - | 6712, as amended by section 36 of this act, and 17-72a03 are hereby |
|---|
| 6546 | | - | repealed. H Sub for SENATE BILL No. 244—page 112 |
|---|
| 6547 | | - | Sec. 75. This act shall take effect and be in force from and after its |
|---|
| 6548 | | - | publication in the statute book. |
|---|
| 6549 | | - | I hereby certify that the above BILL originated in the |
|---|
| 6550 | | - | SENATE, and passed that body |
|---|
| 6551 | | - | __________________________ |
|---|
| 6552 | | - | SENATE concurred in |
|---|
| 6553 | | - | HOUSE amendments _______________________ |
|---|
| 6554 | | - | _________________________ |
|---|
| 6555 | | - | President of the Senate. |
|---|
| 6556 | | - | _________________________ |
|---|
| 6557 | | - | Secretary of the Senate. |
|---|
| 6558 | | - | |
|---|
| 6559 | | - | Passed the HOUSE |
|---|
| 6560 | | - | as amended _________________________ |
|---|
| 6561 | | - | _________________________ |
|---|
| 6562 | | - | Speaker of the House. |
|---|
| 6563 | | - | _________________________ |
|---|
| 6564 | | - | Chief Clerk of the House. |
|---|
| 6565 | | - | APPROVED _____________________________ |
|---|
| 6566 | | - | _________________________ |
|---|
| 6567 | | - | Governor. |
|---|
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