Senate Bill 0826

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    Florida Senate - 1999                                   SB 826

    By Senator Scott





    31-414A-99

  1                      A bill to be entitled

  2         An act relating to corporations; amending s.

  3         607.0722, F.S.; providing alternative methods

  4         of appointing proxies by shareholders; amending

  5         s. 607.11045, F.S.; clarifying provisions

  6         relating to the conversion of shares in certain

  7         internal mergers of corporations; providing an

  8         effective date.

  9

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

11

12         Section 1.  Subsection (2) of section 607.0722, Florida

13  Statutes, is amended to read:

14         607.0722  Proxies.--

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

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

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

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

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

20  photographic, photostatic, or equivalent reproduction of an

21  appointment form, is a sufficient appointment form.

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

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

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

25  such authority by:

26         1.  Signing an appointment form or having such form

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

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

29  limited to, facsimile signature.

30         2.  Transmitting or authorizing the transmission of a

31  telegram, cablegram, or other means of electronic transmission

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    Florida Senate - 1999                                   SB 826
    31-414A-99




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

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

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

  4  to receive such transmission. However, any telegram,

  5  cablegram, or other means of electronic transmission must set

  6  forth or be submitted with information from which it can be

  7  determined that the transmission was authorized by the

  8  shareholder. If it is determined that the transmission is

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

10  inspectors, any other persons making that determination shall

11  specify the information upon which they relied.

12         Section 2.  Subsections (3) and (5) of section

13  607.11045, Florida Statutes, 1998 Supplement, are amended to

14  read:

15         607.11045  Holding company formation by merger by

16  certain corporations.--

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

18  unless expressly required by its articles of incorporation, no

19  vote of shareholders of a corporation is necessary to

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

21  owned subsidiary of such corporation if:

22         (a)  Such corporation and wholly owned subsidiary are

23  the only constituent corporations to the merger;

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

25  constituent corporation whose shares are being converted

26  pursuant to the merger which are outstanding immediately prior

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

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

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

30  and qualifications, limitations and restrictions thereof as

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    Florida Senate - 1999                                   SB 826
    31-414A-99




  1  the share of the constituent corporation being converted in

  2  the merger;

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

  4  corporations to the merger are domestic corporations;

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

  6  holding company immediately following the effective date time

  7  of the merger contain provisions identical to the articles of

  8  incorporation and bylaws of the constituent corporation whose

  9  shares are being converted pursuant to the merger immediately

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

11  provisions regarding the incorporators, the corporate name,

12  the registered office and agent, the initial board of

13  directors, the initial subscribers for shares and matters

14  solely of historical significance, and such provisions

15  contained in any amendment to the articles of incorporation as

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

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

18  reclassification, or cancellation has become effective;

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

20  corporation whose shares are being converted pursuant to the

21  merger or its successor corporation becomes or remains a

22  direct or indirect wholly owned subsidiary of the holding

23  company;

24         (f)  The directors of the constituent corporation

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

26  effective date of the merger;

27         (g)  The articles of incorporation of the surviving

28  corporation immediately following the effective date time of

29  the merger are identical to the articles of incorporation of

30  the constituent corporation whose shares are being converted

31  pursuant to the merger immediately prior to the effective date

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    Florida Senate - 1999                                   SB 826
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  1  time of the merger, except provisions regarding the

  2  incorporators, the corporate name, the registered office and

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

  4  for shares and matters solely of historical significance, and

  5  such provisions contained in any amendment to the articles of

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

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

  8  exchange, reclassification, or cancellation has become

  9  effective. The articles of incorporation of the surviving

10  corporation must be amended in the merger to contain a

11  provision requiring, by specific reference to this section,

12  that any act or transaction by or involving the surviving

13  corporation which requires for its adoption under this act or

14  its articles of incorporation the approval of the shareholders

15  of the surviving corporation also be approved by the

16  shareholders of the holding company, or any successor by

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

18  articles of incorporation of the surviving corporation. The

19  articles of incorporation of the surviving corporation may be

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

21  shares which the surviving corporation is authorized to issue;

22         (h)  The board of directors of the constituent

23  corporation determines that the shareholders of the

24  constituent corporation will not recognize gain or loss for

25  United States federal income tax purposes; and

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

27  a plan of merger that sets forth:

28         1.  The names of the constituent corporations;

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

30  the corporation into shares of the holding company and the

31  manner and basis of converting rights to acquire shares of

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    Florida Senate - 1999                                   SB 826
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  1  such corporation into rights to acquire shares of the holding

  2  company; and

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

  4  the holding company to the holders of shares of the

  5  corporation upon surrender of any certificates therefor.

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

  7  corporation by selection of its board of directors without any

  8  vote of shareholders pursuant to this section, the secretary

  9  or assistant secretary of the constituent corporation shall

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

11  been adopted pursuant to this section and that the conditions

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

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

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

15  607.1106.

16         Section 3.  This act shall take effect upon becoming a

17  law.

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19            *****************************************

20                          SENATE SUMMARY

21    Provides alternative methods by which shareholders of
      corporations may appoint proxies. Clarifies provisions
22    relating to the conversion of shares when a corporation
      merges with or into a wholly owned subsidiary.
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