GENERAL ASSEMBLY OF NORTH CAROLINA
1991 SESSION
CHAPTER 645
The General Assembly of North Carolina enacts:
Section 1. G.S. 55-1-28(b)(3) reads as rewritten:
"(3) That all fees,
taxes, and penalties owed to this State have been paid, if (i) payment is
reflected in the records of the Secretary of State and (ii) nonpayment affects
the existence or authorization of the domestic or foreign corporation; the
articles of incorporation of a domestic corporation or the certificate of
authority of a foreign corporation has not been suspended for failure to comply
with the Revenue Act of this State and that the corporation has not been
administratively dissolved for failure to comply with the provisions of this
Chapter;".
Sec. 2. (a) G.S. 55-4-05(b) reads as rewritten:
"(b) The Secretary of
State shall adopt uniform certificates to be furnished for registration in
accordance with this section. If the corporation involved is not a
domestic corporation or a foreign corporation authorized to do business in this
State, In the case of a foreign corporation, a similar certificate
by any competent authority of the jurisdiction of incorporation may be
registered in accordance with this section."
(b) G.S. 47-18.1(b) reads as rewritten:
"(b) The Secretary of State shall adopt uniform certificates of merger or consolidation, to be furnished for registration, and shall adopt such fees as are necessary for the expense of such certification. If the corporation involved is not a domestic corporation, a similar certificate by any competent authority in the jurisdiction of incorporation may be registered in accordance with this section."
Sec. 3. G.S. 55-5-02 is amended by adding a new subsection (c) to read:
"(c) A corporation may change its registered office or registered agent by including in its annual report required by G.S. 55-16-22 the information and any written consent required by subsection (a)."
Sec. 4. (a) G.S. 55-6-40(h) reads as rewritten:
"(h) Any action by a
shareholder pursuant to subsection (i) and (j) of this section to
compel the payment of dividends may be brought against the directors, or
against the corporation with or without joining the directors as parties.
The shareholder bringing such action shall be entitled, in the event that the
court orders the payment of a dividend, to recover from the corporation all
reasonable expenses, including attorney's fees, incurred in maintaining such
action. If a court orders the payment of a dividend, the amount ordered
to be paid shall be a debt of the corporation."
(b) G.S. 55-6-40 is amended by adding a new subsection (k) to read:
"(k) Nothing in this section shall impair any rights which a shareholder may have on general principles of equity to compel the payment of dividends."
Sec. 5. G.S. 55-7-21.1 reads as rewritten:
"§ 55-7-21.1. Rights of holders of debt securities.
In addition to any rights otherwise lawfully conferred, the articles of incorporation of the corporation may confer upon the holders of any bonds, debentures or other debt obligations issued or to be issued by the corporation any one or more of the following powers and rights upon such terms and conditions as may be prescribed in the articles of incorporation:
(1) The power to vote on any matter either in conjunction with or to the full or partial exclusion of its shareholders, notwithstanding G.S. 55-6-01(c)(1) , and in determination of votes and voting groups, the holders of such debt obligations shall be treated as shareholders;
(2) The right to inspect the corporate books and records;
(3) Any other rights concerning the corporation which its shareholders have or may have.
Any such power or right shall not be diminished, as to bonds, debentures or other obligations then outstanding, except by an amendment of the articles of incorporation approved by the vote or written consent of the holders of a majority in principal amount thereof or such larger percentage as may be specified in the articles of incorporation."
Sec. 6. (a) G.S. 55-8-08(c) reads as rewritten:
"(c) If cumulative voting is authorized, unless the entire board of directors is to be removed, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him."
(b) G.S. 55-8-08 is amended by adding a new subsection (e) to read:
"(e) Unless otherwise provided in the articles of incorporation or a bylaw adopted by the shareholders, the entire board of directors may be removed from office with or without cause by the affirmative vote of a majority of the votes entitled to be cast at any election of directors."
Sec. 7. (a) G.S. 55-8-20(b) reads as rewritten:
"(b) Unless otherwise
provided by the articles of incorporation, or the bylaws
provide otherwise, or the board of directors, may permit any
or all directors may to participate in a regular or special
meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this
means is deemed to be present in person at the meeting."
(b) G.S. 55-8-20 is amended by adding a new subsection (c) to read:
"(c) Unless the bylaws provide otherwise, special meetings of the board of directors may be called by the president or any two directors."
Sec. 8. G.S. 55-10-03(e) reads as rewritten:
"(e) Unless this Chapter, the articles of incorporation, a bylaw adopted by the shareholders, or the board of directors (acting pursuant to subsection (c)) require a greater vote or a vote by voting groups, the amendment to be adopted must be approved by:
(1) A majority of the votes entitled to be cast on the amendment by any voting group with respect to which the amendment would create dissenters' rights; and
(2) The votes required by G.S. 55-7-25 and G.S. 55-7-26 by every other voting group entitled to vote on the amendment."
Sec. 9. G.S. 55-10-05 reads as rewritten:
"§ 55-10-05. Amendment before issuance of shares.
If a corporation has not yet issued shares, the board of
directors, or if the corporation has no directors, a majority of the its
incorporators or board of directors may adopt one or more amendments
to the corporation's articles of incorporation."
Sec. 10. (a) G.S. 55-10-06 reads as rewritten:
"§ 55-10-06. Articles of amendment.
A corporation amending its articles of incorporation shall deliver to the Secretary of State for filing articles of amendment setting forth:
(1) The name of the corporation;
(2) The text of each amendment adopted;
(3) If an amendment provides for an exchange, reclassification, or cancellation of issued shares, provisions for implementing the amendment if not contained in the amendment itself;
(4) The date of each amendment's adoption;
(5) If an amendment was
adopted by the incorporators or board of directors without shareholder action,
a statement to that effect and that a brief explanation of why shareholder
action was not required;
(6) If an amendment was
approved by the shareholders (i) the designation, number of outstanding
shares, number of votes entitled to be cast by each voting group entitled to
vote separately on the amendment, and number of votes of each voting group
indisputably represented at the meeting (ii) either the total number of votes
cast for and against the amendment by each voting group entitled to vote
separately on the amendment or the total number of undisputed votes cast for
the amendment by each voting group and a statement that the number cast for the
amendment by each voting group was sufficient for approval by that voting
group. , a statement that shareholder approval was obtained as required
by this Chapter."
(b) G.S. 55-11-05(a)(3) reads as rewritten:
"(3) If approval of the
shareholders of one or more corporations party to the merger or share exchange
was required (i) the designation, number of outstanding shares, and number
of votes entitled to be cast by each voting group entitled to vote separately
on the plan as to each corporation, and (ii) either the total number of votes
cast for and against the plan by each voting group entitled to vote separately
on the plan or the total number of undisputed votes cast for the plan
separately by each voting group and a statement that the number cast for the
plan by each voting group was sufficient for approval by that voting group ,
a statement that the merger or share exchange was approved by the shareholders
as required by this Chapter."
(c) G.S. 55-14-03(a)(3) and (4) read as rewritten:
"(3) With respect to the
shareholders (i) the number of votes entitled to be cast on the proposal to
dissolve, and (ii) either the total number of votes cast for and against
dissolution or the total number of undisputed votes cast for dissolution and a
statement that the number cast for dissolution was sufficient for
approval. A statement that shareholder approval was obtained as
required by this Chapter.
(4) If voting by
voting groups was required, the information required by subparagraph (3) must
be separately provided for each voting group entitled to vote separately on the
plan to dissolve."
Sec. 11. G.S. 55-10-07(b) reads as rewritten:
"(b) The restated articles of incorporation may include one or more amendments to the articles. If the restated articles of incorporation include an amendment requiring shareholder approval, it must be adopted as provided in G.S. 55-10-03. The restated articles of incorporation may include a statement of the address of the current registered office and the name of the current registered agent of the corporation, and no other."
Sec. 12. G.S. 55-13-02(a)(3) reads as rewritten:
"(3) Consummation of a sale
or exchange of all, or substantially all, of the property of the corporation
other than in the usual and regular course of businessas permitted by
G.S. 55-12-01, including a sale in dissolution, but not including a sale
pursuant to court order or a sale pursuant to a plan by which all or substantially
all of the net proceeds of the sale will be distributed in cash to the
shareholders within one year after the date of sale;".
Sec. 13. Article 15 of Chapter 55 is amended by adding a new section to read:
"§ 55-15-21. Withdrawal of foreign corporation by reason of a merger.
(a) Whenever the separate existence of a foreign corporation authorized to transact business in this State ceases as a result of a statutory merger permitted by the laws of the state or country under which it was incorporated, the surviving corporation shall apply for a certificate of withdrawal for the merged corporation by delivering to the Secretary of State for filing a copy of the articles of merger or a certificate reciting the facts of the merger, duly authenticated by the Secretary of State or other official having custody of corporate records in the state or country under the laws of which such statutory merger was effected. If the surviving corporation is not authorized to transact business in this State the articles of merger or certificate must be accompanied by an application which must set forth:
(1) The name of each merged corporation authorized to transact business in this State and the name of the surviving corporation and a statement that the surviving corporation is not authorized to transact business in this State;
(2) That the surviving corporation consents that service of process based upon any cause of action arising in this State, or arising out of business transacted in this State, during the time each merged corporation was authorized to transact business in this State may thereafter be made on such corporation by service thereof on the Secretary of State;
(3) A mailing address to which the Secretary of State may mail a copy of any process served on him under subdivision (a)(2); and
(4) A commitment to notify the Secretary of State in the future of any change in its mailing address.
(b) If the Secretary of State finds that the articles of merger or certificate and the application for withdrawal, if required, conforms to law he shall:
(1) Endorse on the articles of merger or certificate and the application for withdrawal, if required, the word 'filed' and the hour, day, month and year of the filing thereof;
(2) File the articles of merger or certificate and the application, if required;
(3) Issue a certificate of withdrawal; and
(4) Send to the foreign corporation or its representative the certificate of withdrawal, together with the exact or conformed copy of the application, if required, affixed thereto."
Sec. 14. G.S. 55-15-31 is amended by adding a new subsection (f) to read:
"(f) The corporation shall not be granted a new certificate of authority until each ground for revocation has been substantially corrected to the reasonable satisfaction of the Secretary of State."
Sec. 15. G.S. 55-1-20 is amended by adding a new subsection to read:
"(j) Any signature on any document authorized to be filed with the Secretary of State under any provision of this Chapter may be a facsimile."
Sec. 16. (a) G.S. 55-7-25(a) reads as rewritten:
"(a) Shares entitled to
vote as a separate voting group may take action on a matter at a meeting only
if a quorum of those shares of that voting group exists with
respect to that matter, except that, in the absence of a quorum at the opening
of any meeting of shareholders, such meeting may be adjourned from time to time
by the vote of a majority of the shares voting votes cast on the
motion to adjourn. Unless the articles of incorporation, a bylaw adopted
by the shareholders, or this act provides otherwise, a majority of the votes
entitled to be cast on the matter by the voting group constitutes a quorum of
that voting group for action on that matter."
(b) G.S. 55-7-28(d) reads as rewritten:
"(d) Shares otherwise entitled to vote cumulatively may not be voted cumulatively at a particular meeting unless:
(1) The meeting notice or proxy statement accompanying the notice states conspicuously that cumulative voting is authorized; or
(2) A shareholder or proxy
who has the right to cumulate his votes announces in open meeting, before
voting for directors starts, his intention to vote cumulatively; and if such
announcement is made, the chair shall declare that all shares entitled to vote
have the right to vote cumulatively and shall announce the number of shares
present votes represented in person and by proxy, and shall
thereupon grant a recess of not less than one hour nor more than four hours, as
he shall determine, or of such other period of time as is unanimously then
agreed upon."
Sec. 17. (a) G.S. 55-7-02(a) reads as rewritten:
"(a) A corporation shall hold a special meeting of shareholders:
(1) On call of its board of directors or the person or persons authorized to do so by the articles of incorporation or bylaws; or
(2) If Within 30
days after the holders of at least ten percent (10%) of all the votes
entitled to be cast on any issue proposed to be considered at the proposed
special meeting sign, date, and deliver to the corporation's secretary one or
more written demands for the meeting describing the purpose or purposes for
which it is to be held; except however that, unless otherwise provided in the
articles of incorporation or bylaws, the call of a special meeting by
shareholders is not available to the shareholders of a public
corporation."
(b) G.S. 55-7-03(a) reads as rewritten:
"(a) The superior court of the county where a corporation's principal office (or, if none in this State, its registered office) is located may, after notice is given to the corporation, summarily order a meeting to be held:
(1) On application of any shareholder if an annual meeting of the shareholders was not held within 15 months after the corporation's last annual meeting; or
(2) On application of a
shareholder who signed a demand for a special meeting valid under G.S. 55-7-02,
if (i) notice of the special meeting was not given within 30 days after the
date the demand was received by the corporation's secretary; or (ii) the
special meeting was not held in accordance with the notice. the
corporation does not proceed to hold the meeting as required by that section."
Sec. 18. G.S. 55-10-07(d) reads as rewritten:
"(d) A corporation restating its articles of incorporation shall deliver to the Secretary of State for filing articles of restatement which shall:
(1) Set forth the name of the corporation;
(2) Attach as an exhibit thereto the text of the restated articles of incorporation;
(3) State whether the restated articles of incorporation contain an amendment to the articles requiring shareholder approval and, if they do not, that the board of directors adopted the restated articles of incorporation; and
(4) If the restated
articles of incorporation contain an amendment to the articles requiring
shareholder approval, set forth the information required by G.S. 55-10-06. state
that shareholder approval was obtained as required by this Chapter."
Sec. 19. G.S. 55-7-28(e) reads as rewritten:
"(e) Shareholders of a corporation incorporated in this State shall have the right to cumulate their votes for directors if
(1) The corporation was in existence prior to July 1, 1957, under a charter which does not grant the right of cumulative voting and at the time of the election the stock transfer book of such corporation discloses, or it otherwise appears, that there is at least one stockholder who owns or controls more than one-fourth of the voting stock of such corporation (shares represented at a meeting by revocable proxy relating to that meeting or adjourned meetings thereof shall not be deemed shares 'controlled' within the meaning of this subsection), or if
(2) The corporation was incorporated on or after July 1, 1957, and before July 1, 1990,
unless, when the stock transfer books
are closed or at the record date fixed to determine the shareholders entitled
to receive notice of and to vote at the meeting of shareholders, shares of
any class or series are listed on a national securities exchange or are held of
record by more than 2,000 shareholders. the corporation is a public
corporation as defined in G.S. 55-1-40(18a). This right to vote
cumulatively may be denied or limited by amendment to the articles of
incorporation, but no such amendment shall be made when the number of shares
voting against the amendment would be sufficient to elect a director by
cumulative voting if such shares are entitled to be voted cumulatively for the
election of directors."
Sec. 20. G.S. 55B-15 reads as rewritten:
"§ 55B-15. Applicability of Chapter.
This Chapter shall not apply to any corporation which prior
to June 5, 1969, was permitted by law to render professional services as herein
definedor to the corporate successor of any such corporation by merger or
otherwise by operation of law, provided there is no substantial change in the
direct or indirect beneficial ownership of the shares of such corporation as
the result of such merger or other transaction; for purposes of this
section, a change of twenty percent (20%) or less shall not be considered
substantial; provided, however, any . Any such
corporation or successor corporation rendering 'professional service' as
defined in G.S. 55B-2(6) may be brought within the provisions of this Chapter
by the filing of an amendment to its articles of incorporation declaring that
its shareholders have elected to bring the corporation within the provisions of
this Chapter and to make the same conform to all of the provisions of this
Chapter."
Sec. 21. G.S. 105-232 reads as rewritten:
"§ 105-232. Corporate rights restored; receivership and liquidation.
(a) Any
corporation whose articles of incorporation or certificate of authority to do
business in this State has been suspended by the Secretary of State, State
as provided in G.S. 105-230, which complies within five years after such
suspension, that complies with all the requirements of this
Subchapter and pays all State taxes, fees, or penalties due from it (which
total amount due may be computed, for years prior and subsequent to said the
suspension, in the same manner as if such the suspension had
not taken place), and upon payment pays to the Secretary of
Revenue of a fee of twenty-five dollars ($25.00) to cover the cost of
reinstatement, shall be is entitled to exercise again its rights,
privileges, and franchises in this State. The Secretary of Revenue shall
notify the Secretary of State of such this compliance and the
Secretary of State shall reinstate the corporation by appropriate entry upon
the records of his office. the Office of Secretary of State. The
Secretary of State shall immediately notify the corporation of the reinstatement.
(b) When the certificate
or articles of incorporation or certificate of authority to do business in
this State have has been suspended by the Secretary of State, State
as provided in G.S. 105-230, or similar provisions of prior or
subsequent Revenue Acts, and and the corporation has ceased to operate
as a going concern, if there remains property held in the name of the
corporation, or undisposed of at the time of such the suspension,
or there remain possibilities of reverters, reversionary interests, rights
of reentry or other future interests that may accrue to the corporation or
its successors or stockholders, and the time within which the corporate
rights might be restored as provided by this section has expired, any
stockholder or any bona fide creditor any stockholder, bona fide
creditor, or other interested party may apply to the superior court for the
appointment of a receiver. Application for such the receiver
may be made in a civil action to which all stockholders or their representatives
or next of kin shall be made parties. Stockholders whose whereabouts are unknown
and unknown, unknown stockholders and stockholders, unknown
heirs and next of kin of deceased stockholders stockholders,
creditors, dealers, and other interested persons may be served by publication,
as well as creditors, dealers and other interested persons, and a publication.
A guardian ad litem may be appointed for any stockholders or their
representatives who may be an infant or incompetent. The receiver shall
enter into such a bond with such sureties as may be set by if
the court requires one and shall give such notice to
creditors by publication or otherwise as the court may prescribe. Any
creditor who shall fail fails to file his a claim
with the receiver within the time set shall be barred of the right to
participate in the distribution of the assets. Such The receiver
shall have authority to may (i) sell such the property
or possibilities of reverters, reversionary interests, rights of reentry, or
other future interests, interests of the corporation upon such terms
and in such manner as shall be ordered by the court, the court may
order, (ii) apply the proceeds to the payment of any debts of such the
corporation, and (iii) distribute the remainder among the stockholders
or their representatives in proportion to their interests therein. in
the property interests. Shares due to any stockholder who is unknown
or whose whereabouts are unknown shall be paid into the office of the clerk of
the superior court, by him to be disbursed according to law, in law.
In the event the stock books of the corporation shall be lost or shall are
lost or do not reflect the latest stock transfers, the court shall
determine the respective interests of the stockholders from the best evidence
available, and the receiver shall be protected in acting in accordance with such
finding. Such the court's finding. This proceeding is
authorized for the sole purpose of providing a procedure for disposing of the
corporate assets by the payment of corporate debts, including franchise taxes
which had accrued prior to the suspension of the corporate charter and any
other taxes the assessment or collection of which is not barred by a statute of
limitations, and by the transfer to the stockholders or their representatives
their proportionate shares of the assets owned by the corporation."
Sec. 22. This act is effective Oct. 1, 1991 except for Sections 19-21 which are effective upon ratification.
In the General Assembly read three times and ratified this the 12th day of July, 1991.
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James C. Gardner
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives