FIRST REGULAR SESSION
SENATE BILL NO. 394
92ND GENERAL ASSEMBLY
INTRODUCED BY SENATOR BARTLE.
Read 1st time January 30, 2003, and 1,000 copies ordered printed.
TERRY L. SPIELER, Secretary.
1411S.01I
AN ACT
To repeal sections 351.046, 351.182, 351.268, 351.315, 351.320, and 351.385, RSMo, and to enact in lieu thereof seven new sections relating to general and business corporations.
Section A.Sections 351.046, 351.182, 351.268, 351.315, 351.320, and 351.385, RSMo, are repealed and seven new sections enacted in lieu thereof, to be known as sections 351.046, 351.056, 351.182, 351.268, 351.315, 351.320, and 351.385, to read as follows:
351.046.1.A document shall satisfy the requirements of this section, and of any other section that adds to or varies from these requirements, to be entitled to filing by the secretary of state.
2.This chapter shall require or permit filing the document in the office of the secretary of state.
3.The document shall contain the information required by this chapter. It may contain other information as well.
4.The document shall be typewritten or printed.
5.The document shall be in the English language.
A corporate name need not be in English if written in English letters or Arabic or Roman numerals, and the certificate of existence required of foreign corporations need not be in English if accompanied by a reasonably authenticated English translation.
6.The document shall be executed:
(1)By the chairman of the board of directors of a domestic or foreign corporation, by its president, or by another of its officers;
(2)If directors have not been selected or the corporation has not been formed, by the incorporator(s); or
(3)If the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary.
7.The person executing the document shall sign it and state beneath or opposite his signature his name and the capacity in which he signs.The document may contain the corporate seal, an attestation by the secretary or an assistant secretary, an acknowledgment, verification or proof.
8.If the secretary of state has prescribed a mandatory form for the document under the provisions of section 351.047, the document shall be in or on the prescribed form.
9.The document shall be delivered to the office of the secretary of state for filing and must be accompanied by one exact or conformed copy, except as provided in sections 351.376 and 351.592, the correct filing fee, and any franchise tax, license fee, or penalty required by this chapter or other law.
10.Any signature on any document authorized to be filed by or with the secretary of state pursuant to this chapter may be a facsimile, a conformed signature or an electronically transmitted signature.
351.056.Every corporation may in its articles of incorporation confer upon the holders of any bonds, debentures, or other obligations issued or to be issued by the corporation the power to vote in respect to the corporate affairs and management of the corporation to the extent and in the manner provided in the articles of incorporation and may confer upon such holders of bonds, debentures, or other obligations the same right of inspection of its books, accounts, and other records, and also any other rights, which the shareholders of the corporation have or may have by reason of this chapter or of its articles of incorporation.If the articles of incorporation so provide, such holders of bonds, debentures, or other obligations shall be deemed to be shareholders, and their bonds, debentures, or other obligations shall be deemed to be shares of stock, for the purpose of any provision of this chapter which requires the vote of shareholders as a prerequisite to any corporate action and the articles of incorporation may divest the holders of capital stock, in whole or in part, of their right to vote on any corporate matter whatsoever, except as set forth in section 351.093.
351.182.1.Subject to any provisions in the articles of incorporation, every corporation may create and issue, whether or not in connection with the issue and sale of any shares of stock or other securities of the corporation, rights or options entitling the holders thereof to purchase from the corporation any shares of its capital stock of any class or classes, such rights or options to be evidenced by or in such instrument or instruments as is approved by the board of directors.If at the time the corporation issues rights or options, there is insufficient authorized and unissued shares to provide the shares needed if and when the rights or options are exercised, the granting of the rights or options shall not be invalid solely by reason of the lack of sufficient authorized but unissued shares.
2.The terms upon which any such shares may be purchased from the corporation upon the exercise of any such right or option, shall be as stated in the articles of incorporation, or in a resolution adopted by the board of directors providing for the creation and issue of such rights or options, and, in every case, shall be set forth or incorporated by reference in the instrument or instruments evidencing such rights or options.Such terms may include, but not be limited to:
(1)The duration of such rights or options, which may be limited or unlimited;
(2)The price or prices at which any such shares may be purchased from the corporation upon the exercise of any such right or option;
(3)The holders by whom such rights or options may be exercised;
(4)The conditions to or which may preclude or limit the exercise, transfer or receipt of such rights or options, or which may invalidate or void such rights or options, including without limitation conditions based upon a specified number or percentage of outstanding shares, rights, options, convertible securities, or obligations of the corporation as to which any person or persons or their transferees own or offer to acquire; and
(5)The conditions upon which such rights or options may be redeemed.
Such terms may be made dependent upon facts ascertainable outside the documents evidencing the rights, or the resolution providing for the issue of the rights or options adopted by the board of directors, if the manner in which the facts shall operate upon the exercise of the rights or options is clearly and expressly set forth in the document evidencing the rights or options, or in the resolution.In the absence of actual fraud in the transaction, the judgment of the directors as to the consideration for the issuance of such rights or options and the sufficiency thereof and the terms of such rights or options shall be conclusive.In case the shares of stock of the corporation to be issued upon the exercise of such rights or options shall be shares having a par value, the price or prices so to be received therefor shall not be less than the par value thereof.In case the shares of stock so to be issued shall be shares of stock without par value, the consideration therefor shall be determined in the manner provided in section 351.185.Nothing contained in subsection 1 of section 351.180 shall be deemed to limit the authority of the board of directors to determine, in its sole discretion, the terms of the rights or options issuable pursuant to this section.
3.The board of directors may, by a resolution adopted by the board, authorize one or more officers of the corporation to do one or both of the following:
(1)Designate officers and employees of the corporation or of any of its subsidiaries to be recipients of such rights or options created by the corporation;
(2)Determine the number of such rights or options to be received by such officers and employees; provided, however, that the resolution so authorizing such officer or officers shall specify the total number of rights or options such officer or officers may so award.The board of directors may not authorize an officer to designate himself or herself as a recipient of any such rights or options.
351.268.1.In addition to the provisions of sections 351.265 and 351.267 regarding the adjournment of shareholders meetings at which a quorum is not present, unless the bylaws provide to the contrary, a meeting may be otherwise successively adjourned to a specified date not longer than ninety days after such adjournment or to another place.Notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting.If the adjournment is for more than ninety days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the date and place of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.
2.A shareholder's meeting may be successively postponed by resolution of the board of directors, unless otherwise provided in the bylaws, to a specified date up to a date ninety days after such postponement or to another place, provided notice of the date and place of the postponed meeting, which may be by public notice, is given to each shareholder of record entitled to vote at the meeting [prior to the date previously scheduled for such meeting].
3.For purposes of this chapter, "adjournment" means a delay in the date, which may also be combined with a change in the place, of a meeting after the meeting has been convened; "postponement" means a delay in the date, which may be combined with a change in the place, of the meeting before it has been convened, but after the time and place thereof have been set forth in a notice delivered or given to shareholders; and public notice shall be deemed to have been given if a public announcement is made by press release reported by a national news service or in a publicly available document filed with the United States Securities and Exchange Commission.
351.315.1.A corporation shall have three or more directors, except that a corporation may have one or two directors provided the number of directors to constitute the board of directors is stated in the articles of incorporation.Any corporation may elect its directors for one or more years, not to exceed three years, the time of service and mode of classification to be provided for by the articles of incorporation or the bylaws of the corporation; but, there shall be an annual election for such number or proportion of directors as may be found upon dividing the entire number of directors by the number of years composing a term. At the first annual meeting of shareholders and at each annual meeting thereafter the shareholders entitled to vote shall elect directors to hold office until the next succeeding annual meeting, except as herein provided.Each director shall hold office for the term for which he is elected or until his successor shall have been elected and qualified.
2.The articles of incorporation may confer upon holders of any class or series of stock the right to elect one or more directors who shall serve for such term, and shall have such voting powers as shall be stated in the articles of incorporation.The terms of office and voting powers of the directors elected in the manner so provided in the articles of incorporation may be greater than or less than those of any other director or class of directors.If the articles of incorporation provide that directors elected by the holders of a class or series of stock shall have more or less than one vote per director on any matter, every reference in this chapter to a majority or other proportion of directors shall refer to a majority or other proportion of the votes of such directors.
[2.]3.At a meeting called expressly for that purpose, directors may be removed in the manner provided in this section.Such meeting shall be held at the registered office or principal business office of the corporation in this state or in the city or county in this state in which the principal business office of the corporation is located.Unless the articles of incorporation or the bylaws provide otherwise, one or more directors or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors.If the articles of incorporation or bylaws provide for cumulative voting in the election of directors, if less than the entire board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.Whenever the holders of the shares of any class are entitled to elect one or more directors by the provisions of the articles of incorporation, the provisions of this section shall apply, in respect of the removal of a director or directors so elected, to the vote of the holders of the outstanding shares of that class and not to the vote of the outstanding shares as a whole.
[3.]4.The corporation shall give written notice to the secretary of state of the number of directors of the corporation as fixed by any method.The notice shall be given within thirty days of the date when the number of directors is fixed, and similar notice shall be given whenever the number of directors is changed.
351.320.1.Unless otherwise provided in the articles of incorporation or bylaws of the corporation, vacancies on the board and newly created directorships resulting from any increase in the number of directors to constitute the board of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, until the next election of directors by the shareholders of the corporation; except that, if shareholders elect directors by class pursuant to section 351.315, a director elected by the board pursuant to this section to fill a vacancy or to a newly created directorship need not be presented for election by shareholders until the class to which the director has been so elected by the board is presented for election by the shareholders.
2.Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the articles of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office.
351.385.Each corporation shall have power:
(1)To have succession by its corporate name for the period limited in its articles of incorporation or perpetually where there is no such limitations;
(2)To sue and be sued, complain and defend in any court of law or equity;
(3)To have a corporate seal which may be altered at pleasure and to use the same by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced;
(4)To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in, sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its real or personal property, or any interest therein, or other assets, wherever situated; and to hold for any period of time, real estate acquired in payment of a debt, by foreclosure or otherwise, or real estate exchanged therefor;
(5)To be a general or limited partner;
(6)To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, loan, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships, or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district or municipality or of any instrumentality thereof;
(7)To make contracts and guarantees, including but not limited to guarantees of the capital stock, bonds, other securities, evidences of indebtedness and other debts and obligations issued by any other corporation of this or any other state, or issued by any state or [other] any political subdivision thereof; to incur liabilities; to borrow money at such rates of interest as the corporation may determine without regard to the restrictions of any usury law of this state; to issue its notes, bonds, and other obligations; to issue notes or bonds, secured or unsecured, which by their terms are convertible into shares of stock of any class, upon such terms and conditions and at such rates or prices as may be provided in such notes or bonds and the indenture or mortgage under which they are issued; and to secure any of its obligations by mortgage, pledge, or deed of trust of all or any of its property, franchises, and income;
(8)To invest its surplus funds from time to time and to lend money and to take and hold real and personal property as security for the payment of funds so invested or loaned;
(9)To conduct its business, carry on its operations, and have offices within and without this state, and to exercise in any other state, territory, district, or possession of the United States, or in any foreign country, the powers granted by this chapter;
(10)To elect or appoint directors, officers and agents of the corporation, define their duties and fix their compensation, and to indemnify directors, officers and employees to the extent and in the manner permitted by law;
(11)To make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this state, for the administration and regulation of the affairs of the corporation, and to adopt emergency bylaws and exercise emergency powers as permitted by law;
(12)To transact any lawful business in aid of the United States in the prosecution of war, to make donations to associations and organizations aiding in war activities, and to lend money to the state or federal government for war purposes;
(13)To cease its corporate activities and surrender its corporate franchise;
(14)To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is formed;
(15)To make contributions to any corporation organized for civic, charitable, benevolent, scientific or educational purposes, or to any incorporated or unincorporated association, community chest or community fund, not operated or used for profit to its members but operated for the purposes of raising funds for and of distributing funds to other civic, charitable, benevolent, scientific or educational organizations or agencies;
(16)To renounce, in its articles of incorporation or by action of its board of directors, any interest or expectancy of the corporation in, or in being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or one or more of its officers, director, or stockholders.