SECOND REGULAR SESSION
SENATE COMMITTEE SUBSTITUTE FOR
HOUSE BILL NO. 1983
94TH GENERAL ASSEMBLY
Reported from the Committee on the Judiciary and Civil and Criminal Jurisprudence, April 24, 2008, with recommendation that the Senate Committee Substitute do pass.
TERRY L. SPIELER, Secretary.
4780S.03C
AN ACT
To amend chapter 351, RSMo, by adding thereto two new sections relating to business organizations.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Chapter 351, RSMo, is amended by adding thereto two new sections, to be known as sections 351.408 and 351.409, to read as follows:
351.408. 1. As used in this section, the term "other entity" means a limited liability company, statutory trust, common law trust, or any other unincorporated business including a partnership (whether general (including a limited liability partnership) or limited), or a foreign corporation.
2. Any other entity may convert to a corporation of this state by complying with subsection 8 of this section and filing in the office of the secretary of state:
(1) A certificate of conversion to corporation that has been executed in accordance with subsection 9 of this section and filed in accordance with section 351.046; and
(2) Articles of incorporation that have been executed, acknowledged and filed in accordance with section 351.046.
3. The certificate of conversion to corporation shall state:
(1) The date on which and jurisdiction where the other entity was first created, incorporated, formed or otherwise came into being and, if it has changed, its jurisdiction immediately prior to its conversion to a domestic corporation;
(2) The name of the other entity immediately prior to the filing of the certificate of conversion to corporation; and
(3) The name of the corporation as set forth in its articles of incorporation filed in accordance with subsection 2 of this section.
4. Upon the effective time of the certificate of conversion to corporation and the articles of incorporation, the other entity shall be converted to a corporation of this state and the corporation shall thereafter be subject to all of the provisions of this title, except that notwithstanding section 351.075, the existence of the corporation shall be deemed to have commenced on the date the other entity commenced its existence in the jurisdiction in which the other entity was first created, formed, incorporated or otherwise came into being.
5. The conversion of any other entity to a corporation of this state shall not be deemed to affect any obligations or liabilities of the other entity incurred prior to its conversion to a corporation of this state or the personal liability of any person incurred prior to such conversion.
6. When another entity has been converted to a corporation of this state under this section, the corporation of this state shall, for all purposes of the laws of the state of Missouri, be deemed to be the same entity as the converting other entity. When any conversion shall have become effective under this section, for all purposes of the laws of the state of Missouri, all of the rights, privileges and powers of the other entity that has converted, and all property, real, personal and mixed, and all debts due to such other entity, as well as all other things and causes of action belonging to such other entity, shall remain vested in the domestic corporation to which such other entity has converted and shall be the property of such domestic corporation and the title to any real property vested by deed or otherwise in such other entity shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of such other entity shall be preserved unimpaired, and all debts, liabilities and duties of the other entity that has converted shall remain attached to the corporation of this state to which such other entity has converted, and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by it in its capacity as a corporation of this state. The rights, privileges, powers and interests in property of the other entity, as well as the debts, liabilities and duties of the other entity, shall not be deemed, as a consequence of the conversion, to have been transferred to the domestic corporation to which such other entity has converted for any purpose of the laws of the state of Missouri.
7. Unless otherwise agreed for all purposes of the laws of the state of Missouri or as required under applicable non-Missouri law, the converting other entity shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the conversion shall not be deemed to constitute a dissolution of such other entity and shall constitute a continuation of the existence of the converting other entity in the form of a corporation of this state.
8. Prior to filing a certificate of conversion to corporation with the office of the secretary of state, the conversion shall be approved in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the other entity and the conduct of its business or by applicable law, as appropriate, and articles of incorporation shall be approved by the same authorization required to approve the conversion.
9. The certificate of conversion to corporation shall be signed by any person who is authorized to sign the certificate of conversion to corporation on behalf of the other entity.
10. In connection with a conversion hereunder, rights or securities of, or interests in, the other entity which is to be converted to a corporation of this state may be exchanged for or converted into cash, property, or shares of stock, rights or securities of such corporation of this state or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, or shares of stock, rights or securities of or interests in another domestic corporation or other entity or may be cancelled.
351.409. 1. A corporation of this state may, upon the authorization of such conversion in accordance with this section, convert to a limited liability company, statutory trust, common law trust or any other unincorporated business including a partnership (whether general (including a limited liability partnership) or limited) or a foreign corporation.
2. The board of directors of the corporation which desires to convert under this section shall adopt a resolution approving such conversion, specifying the type of entity into which the corporation shall be converted and recommending the approval of such conversion by the shareholders of the corporation. Such resolution shall be submitted to the shareholders of the corporation at an annual or special meeting. Due notice of the time, and purpose of the meeting shall be mailed to each holder of stock, whether voting or nonvoting, of the corporation at the address of the shareholder as it appears on the records of the corporation, at least twenty days prior to the date of the meeting. At the meeting, the resolution shall be considered and a vote taken for its adoption or rejection. If all outstanding shares of stock of the corporation, whether voting or nonvoting, shall be voted for the adoption of the resolution, the conversion shall be authorized.
3. If a corporation shall convert in accordance with this section to another entity organized, formed or created under the laws of a jurisdiction other than the state of Missouri, the corporation shall file with the secretary of state a certificate of conversion executed in accordance with section 351.046, which certifies:
(1) The name of the corporation, and if it has been changed, the name under which it was originally incorporated;
(2) The date of filing of its original articles of incorporation with the secretary of state;
(3) The name and jurisdiction of the entity to which the corporation shall be converted;
(4) That the conversion has been approved in accordance with the provisions of this section;
(5) The agreement of the corporation that it may be served with process in the state of Missouri in any action, suit or proceeding for enforcement of any obligation of the corporation arising while it was a corporation of this state, and that it irrevocably appoints the secretary of state as its agent to accept service of process in any such action, suit or proceeding; and
(6) The address to which a copy of the process referred to in subdivision (5) of this subsection shall be mailed to it by the secretary of state. In the event of such service upon the secretary of state in accordance with subdivision (5) of this subsection, the secretary of state shall forthwith notify such corporation that has converted out of the state of Missouri by letter, certified mail, return receipt requested, directed to such corporation that has converted out of the state of Missouri at the address so specified, unless such corporation shall have designated in writing to the secretary of state a different address for such purpose, in which case it shall be mailed to the last address designated. Such letter shall enclose a copy of the process and any other papers served on the secretary of state under this subsection. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers in duplicate, to notify the secretary of state that service is being effected under this subsection and to pay the secretary of state the sum of fifty dollars for the use of the state, which sum shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail therein. The secretary of state shall maintain an alphabetical record of any such service setting forth the name of the plaintiff and the defendant, the title, docket number and nature of the proceeding in which process has been served, the fact that service has been effected under this subsection, the return date thereof, and the day and hour service was made. The secretary of state shall not be required to retain such information longer than five years from receipt of the service of process.
4. Upon the filing in the office of the secretary of state of a certificate of conversion to a non-Missouri entity in accordance with subsection 3 of this section or upon the future effective date or time of the certificate of conversion to a non-Missouri entity and payment to the secretary of state of all fees prescribed under this chapter, the secretary of state shall certify that the corporation has filed all documents and paid all fees required by this chapter, and thereupon the corporation shall cease to exist as a corporation of this state at the time the certificate of conversion becomes effective in accordance with section 351.075. Such certificate of the secretary of state shall be prima faci evidence of the conversion by such corporation out of the state of Missouri.
5. The conversion of a corporation out of the state of Missouri in accordance with this section and the resulting cessation of its existence as a corporation of this state pursuant to a certificate of conversion to a non-Missouri entity shall not be deemed to affect any obligations or liabilities of the corporation incurred prior to such conversion or the personal liability of any person incurred prior to such conversion, nor shall it be deemed to affect the choice of law applicable to the corporation with respect to matters arising prior to such conversion.
6. Unless otherwise provided in a resolution of conversion adopted in accordance with this section, the converting corporation shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the conversion shall not constitute a dissolution of such corporation.
7. In connection with a conversion of a domestic corporation to another entity under this section, shares of stock, of the corporation of this state which is to be converted may be exchanged for or converted into cash, property, rights or securities of, or interests in, the entity to which the corporation of this state is being converted or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, shares of stock, rights or securities of, or interests in, another domestic corporation or other entity or may be cancelled.
8. When a corporation has been converted to another entity under this section, the other entity shall, for all purposes of the laws of the state of Missouri, be deemed to be the same entity as the corporation. When any conversion shall have become effective under this section, for all purposes of the laws of the state of Missouri, all of the rights, privileges and powers of the corporation that has converted, and all property, real, personal and mixed, and all debts due to such corporation, as well as all other things and causes of action belonging to such corporation, shall remain vested in the other entity to which such corporation has converted and shall be the property of such other entity, and the title to any real property vested by deed or otherwise in such corporation shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of such corporation shall be preserved unimpaired, and all debts, liabilities and duties of the corporation that has converted shall remain attached to the other entity to which such corporation has converted, and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by it in its capacity as such other entity. The rights, privileges, powers and interest in property of the corporation that has converted, as well as the debts, liabilities and duties of such corporation, shall not be deemed, as a consequence of the conversion, to have been transferred to the other entity to which such corporation has converted for any purpose of the laws of the state of Missouri.
9. No vote of shareholders of a corporation shall be necessary to authorize a conversion if no shares of the stock of such corporation shall have been issued prior to the adoption by the board of directors of the resolution approving the conversion.
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