An Act concerning business entities; amending K.S.A. 17-6712, 17-7306, 17-7402, 17-7634, 17-7654 and 17-7706 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) Any instrument filed in accordance with the Kan- sas revised uniform limited partnership act, and amendments thereto, may be filed by telefacsimile communications. If such telefacsimile com- munication is accompanied with the appropriate fees, and meets the stat- utory requirements, it shall be effective upon its filing date except that the original instrument must be filed in the secretary of state's office within seven days after its telefacsimile filing date. The secretary of state shall prescribe a telefacsimile communication fee in addition to any filing fees to cover the cost of the services. The fee must be paid prior to acceptance of a telefacsimile communication under this section. The te- lefacsimile communication fee shall be deposited into the information and copy service fee fund. Failure to file the original instrument with the secretary of state's office within such seven days shall void the telefacsi- mile filing and such instrument shall not take effect until the original is so filed.
(b) As used in this section, ``telefacsimile communication'' means the use of electronic equipment to send or transfer a copy of an original document via telephone lines.
(c) The provisions of this section shall be part of and supplemental to the Kansas revised uniform limited partnership act.
Sec. 2. K.S.A. 17-6712 is hereby amended to read as follows: 17- 6712. (a) When used in this section, the word ``stockholder'' means a holder of record of stock in a stock corporation and also a member of record of a nonstock corporation; the words ``stock'' and ``share'' mean and include what is ordinarily meant by those words and also membership or membership interest of a member of a nonstock corporation.
(b) The corporation surviving or resulting from any merger or con- solidation, within 10 days after the effective date of the merger or con- solidation, shall notify each stockholder of any corporation of this state so merging or consolidating who objected thereto in writing and whose shares either were not entitled to vote or were not voted in favor of the merger or consolidation, and who filed such written objection with the corporation before the taking of the vote on the merger or consolidation, that the merger or consolidation has become effective. If any such stock- holder, within 20 days after the date of mailing of the notice, shall demand in writing, from the corporation surviving or resulting from the merger or consolidation, payment of the value of the stockholder's stock, the surviving or resulting corporation shall pay to the stockholder, within 30 days after the expiration of the period of 20 days, the value of the stock- holder's stock on the effective date of the merger or consolidation, exclu- sive of any element of value arising from the expectation or accomplish- ment of the merger or consolidation.
(c) If during a period of 30 days following the period of 20 days provided for in subsection (b), the corporation and any such stockholder fail to agree upon the value of such stock, any such stockholder, or the corporation surviving or resulting from the merger or consolidation, may demand a determination of the value of the stock of all such stockholders by an appraiser or appraisers to be appointed by the district court, by filing a petition with the court within four months after the expiration of the thirty-day period.
(d) Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the corporation, which shall file with the clerk of such court, within 10 days after such service, a duly verified list containing the names and addresses of all stockholders who have de- manded payment for their shares and with whom agreements as to the value of their shares have not been reached by the corporation. If the petition shall be filed by the corporation, the petition shall be accompa- nied by such duly verified list. The clerk of the court shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the corporation and to the stockholders shown upon the list at the addresses therein stated and notice shall also be given by pub- lishing a notice at least once, at least one week before the day of the hearing, in a newspaper of general circulation in the county in which the court is located. The court may direct such additional publication of notice as it deems advisable. The forms of the notices by mail and by publication shall be approved by the court.
(e) After the hearing on such petition the court shall determine the stockholders who have complied with the provisions of this section and become entitled to the valuation of and payment for their shares, and shall appoint an appraiser or appraisers to determine such value. Any such appraiser may examine any of the books and records of the corporation or corporations the stock of which such appraiser is charged with the duty of valuing, and such appraiser shall make a determination of the value of the shares upon such investigation as seems proper to the appraiser. The appraiser or appraisers shall also afford a reasonable opportunity to the parties interested to submit to the appraiser or appraisers pertinent evi- dence on the value of the shares. The appraiser or appraisers, also, shall have the powers and authority conferred upon masters by K.S.A. 60-253 and amendments thereto.
(f) The appraiser or appraisers shall determine the value of the stock of the stockholders adjudged by the court to be entitled to payment there- for and shall file a report respecting such value in the office of the clerk of the court, and notice of the filing of such report shall be given by the clerk of the court to the parties in interest. Such report shall be subject to exceptions to be heard before the court both upon the law and facts. The court by its decree shall determine the value of the stock of the stockholders entitled to payment therefor and shall direct the payment of such value, together with interest, if any, as hereinafter provided, to the stockholders entitled thereto by the surviving or resulting corporation. Upon payment of the judgment by the surviving or resulting corporation, the clerk of the district court shall surrender to the corporation the cer- tificates of shares of stock held by the clerk pursuant to subsection (g). The decree may be enforced as other judgments of the district court may be enforced, whether such surviving or resulting corporation be a cor- poration of this state or of any other state.
(g) At the time of appointing the appraiser or appraisers, the court shall require the stockholders who hold certificated shares and who de- manded payment for their shares to submit their certificates of stock to the clerk of the court, to be held by the clerk pending the appraisal proceedings. If any stockholder fails to comply with such direction, the court shall dismiss the proceedings as to such stockholder.
(h) The cost of any such appraisal, including a reasonable fee to and the reasonable expenses of the appraiser, but exclusive of fees of counsel or of experts retained by any party, shall be determined by the court and taxed upon the parties to such appraisal or any of them as appears to be equitable, except that the cost of giving the notice by publication and by registered or certified mail hereinabove provided for shall be paid by the corporation. The court, on application of any party in interest, shall de- termine the amount of interest, if any, to be paid upon the value of the stock of the stockholders entitled thereto.
(i) Any stockholder who has demanded payment of the stockholder's stock as herein provided shall not thereafter be entitled to vote such stock for any purpose or be entitled to the payment of dividends or other dis- tribution on the stock, except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation, unless the appointment of an appraiser or ap- praisers shall not be applied for within the time herein provided, or the proceeding be dismissed as to such stockholder, or unless such stock- holder with the written approval of the corporation shall deliver to the corporation a written withdrawal of the stockholder's objections to and an acceptance of the merger or consolidation, in any of which cases the right of such stockholder to payment for the stockholder's stock shall cease.
(j) The shares of the surviving or resulting corporation into which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation shall have the status of au- thorized and unissued shares of the surviving or resulting corporation.
(k) This section shall not apply to the shares of any class or series of a class of stock, which, at the record date fixed to determine the stock- holders entitled to receive notice of and to vote at the meeting of stock- holders at which the agreement of merger or consolidation is to be acted on, were either (1) registered on a national securities exchange or des- ignated as a national market system security on an interdealer quotation system by the national association of securities dealers, inc., or (2) held of record by not less than 2,000 stockholders, unless the articles of in- corporation of the corporation issuing such stock shall otherwise provide; nor shall this section apply to any of the shares of stock of the constituent corporation surviving a merger, if the merger did not require for its ap- proval the vote of the stockholders of the surviving corporation, as pro- vided in subsection (f) of K.S.A. 17-6701 and amendments thereto. This subsection shall not be applicable to the holders of a class or series of a class of stock of a constituent corporation if under the terms of a merger of consolidation pursuant to K.S.A. 17-6701 or 17-6702, and amendments thereto, such holders are required to accept for such stock anything ex- cept (i) stock or stock and cash in lieu of fractional shares of the corpo- ration surviving or resulting from such merger or consolidation, or (ii) stock or stock and cash in lieu of fractional shares of any other corporation, which at the record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders at which the agreement of merger or consolidation is to be acted on, were either reg- istered on a national securities exchange or held of record by not less than 2,000 stockholders, or (iii) a combination of stock or stock and cash in lieu of fractional shares as set forth in (i) and (ii) of this subsection.
Sec. 3. K.S.A. 17-7306 is hereby amended to read as follows: 17- 7306. (a) Any foreign corporation which shall have qualified to do business in this state under the provisions of K.S.A. 17-7301, and amendments thereto, may surrender its authority to do business in this state and may withdraw therefrom by filing with the secretary of state:
(1) A certificate signed by its president or a vice-president
and under its corporate seal, attested by its secretary or an
assistant secretary, stating that it surrenders its authority to
transact business in the state of Kansas and withdraws therefrom;
and stating the address to which the secretary of state may mail
any process against the corporation that may be served upon
him the secretary of state; or
(2) A copy of a certificate of dissolution issued by the proper
official of the state or other jurisdiction of its incorporation,
certified to be a true copy under the hand and official seal of the
official, together with a cer- tificate, which shall be executed in
accordance with paragraph (1) of this subsection, stating the
address to which the secretary of state may mail any process
against the corporation that may be served upon
him the secretary of state; or
(3) A copy of an order or decree of dissolution made by any
court of competent jurisdiction or other competent authority of the
state or other jurisdiction of its incorporation, certified to be a
true copy under the hand of the clerk of the court or other
official body, and the official seal of the court or official body
or clerk thereof, together with a certificate executed in
accordance with paragraph (1) of this subsection, stating the
address to which the secretary of state may mail any process
against the corpo- ration that may be served upon
him the secretary of state.
The documents evidencing the withdrawal may be filed by telefacsimile communication as prescribed by K.S.A. 17-6003a, and amendments thereto.
(b) The secretary of state, upon payment to
the secretary of state of any required fees, shall issue a
sufficient number of certificates, under his
the secretary of state's hand and official seal, evidencing
the surrender of the authority of the corporation to do business in
this state and its withdrawal therefrom. One of the certificates
shall be furnished to the corporation withdrawing and surrendering
its right to do business in this state; one certificate shall be
delivered to the agent of the corporation designated as such
immediately prior to the withdrawal.
(c) Upon the issuance of the certificates by the secretary of state, the appointment of the resident agent of the corporation in this state, upon whom process against the corporation may be served, shall be revoked, and the corporation shall be deemed to have consented that service of process in any action, suit or proceeding based upon any cause of action arising in this state, during the time the corporation was authorized to transact business in this state, may thereafter be made by service upon the secretary of state in the manner prescribed by K.S.A. 60-304, and amendments thereto.
Sec. 4. K.S.A. 17-7402 is hereby amended to read as follows: 17- 7402. The exclusive right to the use of a corporate name may be reserved by: (a) Any person intending to organize a corporation under this act;
(b) any domestic corporation intending to change its name;
(c) any foreign corporation intending to make application for a cer- tificate of authority to transact business in this state;
(d) any foreign corporation authorized to transact business in this state, and intending to change its name; and
(e) any person intending to organize a foreign corporation, and in- tending to have such corporation make application for a certificate of authority to transact business in this state.
The reservation shall be made by filing with the secretary of
state an application to reserve a specific corporate name, executed
by the appli- cant. The reservation may be filed by
telefacsimile communication as pre- scribed by K.S.A. 17-6003a, and
amendments thereto. If the secretary of state finds that the
name is available for corporate use, he shall reserve the same for
the exclusive use of the applicant for a period of
hundred twenty (120) 120 days.
The right to exclusive use of a specified corporate name, so reserved, may be transferred to any other person or corporation by filing in the office of the secretary of state, a notice of such transfer, executed by the applicant for whom the name was reserved, and specifying the name and address of the transferee.
Sec. 5. K.S.A. 17-7634 is hereby amended to read as follows: 17- 7634. (a) Each certificate required by this act to be filed in the office of the secretary of state shall be executed in the following manner, unless another manner is specified in this act:
(1) Articles of organization shall be signed by the person forming the organization or by any member or manager;
(2) a certificate of amendment shall be signed by any member or
manager and by every member who is designated in the certificate of
amendment as a new member;
(3) a statement of intent to dissolve and articles of dissolution shall be signed by all members; and
(4) a certificate of merger shall be signed by any member or manager of the surviving company.
(b) Any person may sign any certificate by an attorney-in-fact, but a power of attorney to sign a certificate relating to the admission of a mem- ber shall describe the admission. Powers of attorney relating to the signing of a certificate by an attorney-in-fact need not be filed in the office of the secretary of state but shall be retained by the company.
(c) The execution of a certificate by a member constitutes an oath or affirmation, under the penalties of perjury, that the facts stated in the certificate are true and that any power of attorney used in connection with the execution of the certificate is in proper form and substance.
Sec. 6. K.S.A. 17-7654 is hereby amended to read as follows: 17- 7654. (a) A general or limited partnership formed under the laws of this state may convert to a limited liability company by filing articles of or- ganization that meet the requirements of K.S.A. 17-7607 and amend- ments thereto and include the following:
(1) The name of the former general partnership or limited partner- ship; and
(2) if a limited partnership, the date and place of
filing of the initial certificate of
certificate of limited partnership of the for- mer
general partnership or limited partnership.
(b) Nothing in this section shall be construed to require, or deemed to constitute, a dissolution of the general partnership or limited partner- ship prior to its conversion to a limited liability company as permitted in this section.
(c) When a general partnership or limited partnership is converted to a limited liability company pursuant to this section, the title, to any real or personal property or any interest therein and all rights, privileges, powers, debts, causes of action vested in the former partnership shall be deemed to be transferred to and vested in such limited liability company without further act or deed. Confirmatory deeds, assignments or similar instruments to evidence the transfer may be executed and delivered at any time in the name of the partnership to the limited liability company.
(d) When a general partnership or limited partnership is converted to a limited liability company pursuant to this section, all duties, debts, liens, liabilities and rights of creditors as against the former partnership and its partners shall continue without impairment and shall attach to the limited liability company. Any existing claim, action or proceeding pend- ing by or against the partnership or its partners may be prosecuted to judgment as if the conversion had not taken place, or against the limited liability company to the same extent as if such duties, debts, liens and liabilities had been incurred or contracted by it. A judgment against the partnership constitutes a lien against the limited liability company and may be enforced against the limited liability company.
(e) The filing of articles of organization pursuant to subsection (a) cancels the certificate of limited partnership.
(f) The provisions of this section shall be part of and supplemental to the Kansas limited liability company act.
Sec. 7. K.S.A. 17-7706 is hereby amended to read as follows: 17- 7706. (a) After an agreement of merger or consolidation is authorized, approved and certified in accordance with K.S.A. 17-7705, and amend- ments thereto, the surviving or new entity shall file the agreement of merger or consolidation with the secretary of state or, in lieu thereof, a certificate of merger or consolidation, duly executed, by each constituent entity setting forth:
(1) The name, state or country of organization and nature or type of each of the constituent entities;
(2) that an agreement of merger or consolidation has been authorized and approved by each of the constituent entities in accordance with K.S.A. 17-7705, and amendments thereto.
(3) the effective date of the merger or consolidation which may not exceed 90 days after the date of filing of the agreement of merger or consolidation or the articles of merger or consolidation;
(4) the name of the surviving or new entity;
(5) if applicable, the address of the registered office and the name of the registered agent at such office for the surviving or new entity;
(6) in the case of a merger, such amendments or changes to the or- ganizational documents of the surviving entity, as are desired to be ef- fected by the merger, or, if no such amendments or changes are desired, a statement that the organizational documents of the surviving entity shall be its organizational documents;
(7) in the case of a consolidation, that the organizational documents of the new entity shall be set forth in an attachment to such agreement or articles of merger or consolidation;
(8) that the executed agreement of merger or consolidation is on file at the principal place of business of the surviving or new entity, stating the address thereof; and
(9) that a copy of the agreement of merger or consolidation will be furnished by the surviving or new entity, on request and without cost, to any partner, shareholder, member or their equivalent of any entity that is a party to the merger or consolidation.
(b) The agreement or certificate of merger or consolidation
shall be filed in accordance with K.S.A. 17-6003 and amendments
thereto, except that no filing with the register of deeds is
if no domestic cor- poration unless a
domestic corporation or a foreign corporation qualified to do
business in Kansas is a constituent entity.
(c) A merger or consolidation shall be effective when the require- ments for effectiveness of laws under which any constituent entity was formed have been met and the certificate of merger or consolidation has been filed by the secretary of state, unless a later date is certified in the agreement of merger or consolidation or articles of merger or consoli- dation, in which case, the effective date of the merger or consolidation will be the date so specified which shall, in no event, exceed 90 days after the date the agreement of merger or consolidation or certificate of merger or consolidation is delivered to the secretary of state for filing.
Sec. 8. K.S.A. 17-6712, 17-7306, 17-7402, 17-7634, 17-7654 and 17- 7706 are hereby repealed.
Sec. 9. This act shall take effect and be in force from and after its publication in the statute book.
Approved April 4, 1996.