House Bill 0133er

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    1999 Legislature                   CS/HB 133, Second Engrossed



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  2         An act relating to corporations; amending s.

  3         607.0631, F.S.; authorizing a corporation to

  4         acquire shares of a certain series or class and

  5         designate such shares as treasury shares;

  6         amending s. 607.0722, F.S.; providing

  7         alternative methods for appointing proxies by

  8         shareholders; amending s. 607.11045, F.S.;

  9         clarifying provisions relating to the

10         conversion of shares in certain internal

11         mergers of corporations; providing an effective

12         date.

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14  Be It Enacted by the Legislature of the State of Florida:

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16         Section 1.  Subsection (1) of section 607.0631, Florida

17  Statutes, is amended, and subsection (5) is added to that

18  section, to read:

19         607.0631  Corporation's acquisition of its own

20  shares.--

21         (1)  A corporation may acquire its own shares, and,

22  unless otherwise provided in the articles of incorporation or

23  except as provided in subsection (4) or subsection (5), shares

24  so acquired constitute authorized but unissued shares of the

25  same class but undesignated as to series.

26         (5)  A corporation that has shares of any class or

27  series which are either registered on a national securities

28  exchange or designated as a national market system security on

29  an interdealer quotation system by the National Association of

30  Securities Dealers, Inc., may acquire such shares and

31  designate, either in the bylaws or in the resolutions of its


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  1  board, that shares so acquired by the corporation shall

  2  constitute treasury shares.

  3         Section 2.  Subsection (2) of section 607.0722, Florida

  4  Statutes, is amended to read:

  5         607.0722  Proxies.--

  6         (2)(a)  A shareholder may appoint a proxy to vote or

  7  otherwise act for the shareholder him or her by signing an

  8  appointment form, either personally or by the shareholder's

  9  his or her attorney in fact. An executed telegram or cablegram

10  appearing to have been transmitted by such person, or a

11  photographic, photostatic, or equivalent reproduction of an

12  appointment form, is a sufficient appointment form.

13         (b)  Without limiting the manner in which a shareholder

14  may appoint a proxy to vote or otherwise act for the

15  shareholder pursuant to paragraph (a), a shareholder may grant

16  such authority by:

17         1.  Signing an appointment form or having such form

18  signed by the shareholder's authorized officer, director,

19  employee, or agent by any reasonable means including, but not

20  limited to, facsimile signature.

21         2.  Transmitting or authorizing the transmission of a

22  telegram, cablegram, or other means of electronic transmission

23  to the person who will be the proxy or to a proxy solicitation

24  firm, proxy support service organization, registrar, or agent

25  authorized by the person who will be designated as the proxy

26  to receive such transmission.  However, any telegram,

27  cablegram, or other means of electronic transmission must set

28  forth or be submitted with information from which can be

29  determined that the transmission was authorized by the

30  shareholder. If it is determined that the transmission is

31  valid, the inspectors of election or, if there are no


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  1  inspectors, such other persons making that determination shall

  2  specify the information upon which they relied.

  3         Section 3.  Subsections (3) and (5) of section

  4  607.11045, Florida Statutes, 1998 Supplement, are amended to

  5  read:

  6         607.11045  Holding company formation by merger by

  7  certain corporations.--

  8         (3)  Notwithstanding the requirements of s. 607.1103,

  9  unless expressly required by its articles of incorporation, no

10  vote of shareholders of a corporation is necessary to

11  authorize a merger of the corporation with or into a wholly

12  owned subsidiary of such corporation if:

13         (a)  Such corporation and wholly owned subsidiary are

14  the only constituent corporations to the merger;

15         (b)  Each share or fraction of a share of the

16  constituent corporation whose shares are being converted

17  pursuant to the merger which are outstanding immediately prior

18  to the effective date of the merger is converted in the merger

19  into a share or equal fraction of share of a holding company

20  having the same designations, rights, powers and preferences,

21  and qualifications, limitations and restrictions thereof as

22  the share of the constituent corporation being converted in

23  the merger;

24         (c)  The holding company and each of the constituent

25  corporations to the merger are domestic corporations;

26         (d)  The articles of incorporation and bylaws of the

27  holding company immediately following the effective date time

28  of the merger contain provisions identical to the articles of

29  incorporation and bylaws of the constituent corporation whose

30  shares are being converted pursuant to the merger immediately

31  prior to the effective date time of the merger, except


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  1  provisions regarding the incorporators, the corporate name,

  2  the registered office and agent, the initial board of

  3  directors, the initial subscribers for shares and matters

  4  solely of historical significance, and such provisions

  5  contained in any amendment to the articles of incorporation as

  6  were necessary to effect a change, exchange, reclassification,

  7  or cancellation of shares, if such change, exchange,

  8  reclassification, or cancellation has become effective;

  9         (e)  As a result of the merger, the constituent

10  corporation whose shares are being converted pursuant to the

11  merger or its successor corporation becomes or remains a

12  direct or indirect wholly owned subsidiary of the holding

13  company;

14         (f)  The directors of the constituent corporation

15  become or remain the directors of the holding company upon the

16  effective date of the merger;

17         (g)  The articles of incorporation of the surviving

18  corporation immediately following the effective date time of

19  the merger are identical to the articles of incorporation of

20  the constituent corporation whose shares are being converted

21  pursuant to the merger immediately prior to the effective date

22  time of the merger, except provisions regarding the

23  incorporators, the corporate name, the registered office and

24  agent, the initial board of directors, the initial subscribers

25  for shares and matters solely of historical significance, and

26  such provisions contained in any amendment to the articles of

27  incorporation as were necessary to effect a change, exchange,

28  reclassification, or cancellation of shares, if such change,

29  exchange, reclassification, or cancellation has become

30  effective. The articles of incorporation of the surviving

31  corporation must be amended in the merger to contain a


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  1  provision requiring, by specific reference to this section,

  2  that any act or transaction by or involving the surviving

  3  corporation which requires for its adoption under this act or

  4  its articles of incorporation the approval of the shareholders

  5  of the surviving corporation also be approved by the

  6  shareholders of the holding company, or any successor by

  7  merger, by the same vote as is required by this act or the

  8  articles of incorporation of the surviving corporation. The

  9  articles of incorporation of the surviving corporation may be

10  amended in the merger to reduce the number of classes and

11  shares which the surviving corporation is authorized to issue;

12         (h)  The board of directors of the constituent

13  corporation determines that the shareholders of the

14  constituent corporation will not recognize gain or loss for

15  United States federal income tax purposes; and

16         (i)  The board of directors of such corporation adopts

17  a plan of merger that sets forth:

18         1.  The names of the constituent corporations;

19         2.  The manner and basis of converting the shares of

20  the corporation into shares of the holding company and the

21  manner and basis of converting rights to acquire shares of

22  such corporation into rights to acquire shares of the holding

23  company; and

24         3.  A provision for the pro rata issuance of shares of

25  the holding company to the holders of shares of the

26  corporation upon surrender of any certificates therefor.

27         (5)  If a plan of merger is adopted by a constituent

28  corporation by selection of its board of directors without any

29  vote of shareholders pursuant to this section, the secretary

30  or assistant secretary of the constituent corporation shall

31  certify in the articles of merger that the plan of merger has


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  1  been adopted pursuant to this section and that the conditions

  2  specified in subsection (3) the first sentence of this section

  3  have been satisfied. The articles of merger so certified shall

  4  then be filed and become effective in accordance with s.

  5  607.1106.

  6         Section 4.  This act shall take effect upon becoming a

  7  law.

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