| PRINTER'S NO. 3516 |
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. | 2234 | Session of 2014 |
INTRODUCED BY TURZAI, DERMODY, KOTIK, MACKENZIE, MARSHALL, MILLARD, GREINER, PAINTER, KILLION, READSHAW, DAVIS, EVERETT, BOBACK, THOMAS, TRUITT, ROZZI, MUSTIO, BARBIN, AUMENT, BAKER, COHEN, MILNE, DENLINGER, MICOZZIE, OBERLANDER, GROVE, SWANGER, BROWNLEE, MENTZER, CUTLER, FEE, WATSON, McNEILL, MURT, COX, BLOOM, METCALFE, FRANKEL, HICKERNELL, LAWRENCE, SAYLOR, GABLER, HARHART, CARROLL, LONGIETTI, KORTZ, CAUSER, GRELL, DeLUCA, D. COSTA, GOODMAN, CLYMER, MULLERY, BRADFORD, GILLEN, HANNA, SANTARSIERO, F. KELLER, ROCK, KAMPF, GINGRICH, PICKETT, KNOWLES AND GODSHALL, MAY 5, 2014
REFERRED TO COMMITTEE ON COMMERCE, MAY 5, 2014
AN ACT
1Amending Titles 15 (Corporations and Unincorporated
2Associations) and 54 (Names) of the Pennsylvania Consolidated
3Statutes, modernizing the law on corporations and
4unincorporated associations by doing the following:
5Adding provisions applicable to associations generally on
6names, mergers, interest exchanges, conversions, divisions,
7domestications and registration of foreign associations to do
8business.
9Extensively revising preliminary provisions on
10definitions, communication, filing, fees, definitive and
11contingent domestication of associations, entities generally,
12entity transactions and foreign associations.
13As to business corporations, extensively revising:
14preliminary provisions on definitions, equitable
15relief and applicability;
1general incorporation provisions on names, articles
2of incorporation, applicability and notice to demand
3payment;
4management and ownership provisions on shareholder
5action;
6fundamental change provisions on omissions,
7termination, de facto transaction, proposals, special
8treatment of shares, submission of matters to
9shareholders, liabilities, sale of assets, division and
10conversion;
11registered corporation provisions on call of special
12meetings of shareholders, shareholder transactions and
13management adoption of merger plans;
14benefit corporation provisions on applicability and
15election of status; and
16foreign business corporation provisions on admission,
17excluded activities, names, commencing business,
18certificates of authority, termination, address change
19after withdrawal, name registration, penalties, powers
20and duties, registered offices and domestication.
21As to nonprofit corporations, extensively revising:
22general provisions on definitions and applicability;
23incorporation provisions on corporate name, changes
24and reservation;
25management and ownership provisions on action;
26fundamental change provisions on authorization,
27plans, notice, procedure, foreign corporations, articles,
28filing, effectiveness, resulting effect, voluntary
29transfer, division and conversion; and
30foreign nonprofit corporate provisions on admission,
1excluded activities, names, commencing business,
2certificates of authority, organic change, termination,
3address change after withdrawal, name registration,
4penalties, powers and duties, registered offices and
5domestication.
6As to cooperative corporations, extensively revising
7workers cooperative corporation provisions on definitions,
8nature and articles.
9As to partnerships and limited liability companies,
10extensively revising:
11registered limited liability partnership provisions
12on name and foreign partnerships;
13limited partnership provisions on definitions, name,
14cancellation of certificate, merger and consolidation,
15nonjudicial dissolution, division and foreign limited
16partnerships; and
17limited liability company provisions on definitions,
18name, election, merger and consolidation, division and
19foreign companies.
20As to unincorporated associations, extensively revising:
21preliminary provisions on definitions; and
22professional associations provisions on
23applicability.
24As to business trusts, extensively revising provisions on
25creation, status and termination, on documentation and on
26foreign business trusts.
27In names:
28as to fictitious names, further providing for scope
29and registration; and
30as to corporate and associational names, further
1providing for a register and for decennial filings.
2Making editorial changes.
3The General Assembly of the Commonwealth of Pennsylvania
4hereby enacts as follows:
5Section 1. This act shall be known and may be cited as the
6Association Transactions Act.
7Section 1.1. The introductory paragraph, the definitions of
8"association," "cooperative corporation," "corporation for
9profit," and "corporation not-for-profit," paragraph (2) of the
10definition of "court" and the definitions of "domestic savings
11association" and "savings association" in section 102 of Title
1215 of the Pennsylvania Consolidated Statutes are amended and the
13section is amended by adding definitions and a subsection to
14read:
15§ 102. Definitions.
16(a) Defined terms.--Subject to additional or inconsistent
17definitions contained in subsequent provisions of this title
18that are applicable to specific provisions of this title, the
19following words and phrases when used in this title shall have,
20unless the context clearly indicates otherwise, the meanings
21given to them in this section:
22* * *
23"Association." A corporation for profit or not-for-profit, a
24partnership, a limited liability company, a business or
25statutory trust, an entity or two or more persons associated in
26a common enterprise or undertaking. The term does not include:
27(1) a testamentary trust or an inter vivos trust as
28defined in 20 Pa.C.S. § 711(3) (relating to mandatory
29exercise of jurisdiction through orphans' court division in
30general)[.];
1(2) an association or relationship that:
2(i) is not a person that has:
3(A) a legal existence separate from any interest
4holder of the person; or
5(B) the power to acquire an interest in real
6property in its own name; and
7(ii) is not a partnership under the rules stated in
8section 8312 (relating to rules for determining the
9existence of a partnership) or a similar provision of the
10law of another jurisdiction;
11(3) a decedent's estate; or
12(4) a government or a governmental subdivision, agency
13or instrumentality.
14* * *
15"Business corporation." A domestic or foreign business
16corporation as defined in section 1103 (relating to
17definitions), whether or not it is a cooperative corporation.
18* * *
19"Cooperative corporation." A domestic corporation that is
20subject to Subpart D of Part II (relating to cooperative
21corporations), or a foreign corporation that is subject to a
22similar law of a foreign jurisdiction.
23"Corporation for profit." A domestic or foreign corporation
24incorporated for a purpose or purposes involving pecuniary
25profit, incidental or otherwise, to its shareholders or members,
26whether or not it is a cooperative corporation.
27"Corporation not-for-profit." A domestic or foreign
28corporation not incorporated for a purpose or purposes involving
29pecuniary profit, incidental or otherwise, whether or not it is
30a cooperative corporation.
1"Court." Subject to any inconsistent general rule prescribed
2by the Supreme Court of Pennsylvania:
3* * *
4(2) where an association results from a merger,
5[consolidation,] division or other transaction without
6establishing a registered office in this Commonwealth or
7withdraws as a foreign corporation or association, the court
8of common pleas in which venue would have been laid
9immediately prior to the transaction or withdrawal.
10* * *
11"Dissenters rights." The rights and remedies provided by
12Subchapter D of Chapter 15 (relating to dissenters rights).
13"Distributional interest." The right under the organic law
14of an entity that is not a corporation for profit or not-for-
15profit, or under the organic rules of such an entity, to receive
16distributions from the entity.
17"Domestic association." An association, the internal affairs
18of which are governed by the law of this Commonwealth.
19* * *
20"Domestic entity." An entity, the internal affairs of which
21are governed by the law of this Commonwealth.
22"Domestic filing association." A domestic association, the
23formation of which requires the filing of a public organic
24record. The term does not include a general partnership that is
25also:
26(1) a limited liability partnership; or
27(2) an electing partnership.
28"Domestic filing entity." A domestic entity, the formation
29of which requires the filing of a public organic record. The
30term does not include a general partnership that is also:
1(1) a limited liability partnership; or
2(2) an electing partnership.
3* * *
4["Domestic savings association." A domestic corporation for
5profit which is an association as defined in section 102(3) of
6the former act of December 14, 1967 (P.L.746, No.345), known as
7the Savings Association Code of 1967.]
8* * *
9"Electronic." Relating to technology having electrical,
10digital, magnetic, wireless, optical, electromagnetic or similar
11capabilities.
12"Entity." A domestic or foreign:
13(1) business corporation;
14(2) nonprofit corporation;
15(3) general partnership;
16(4) limited partnership;
17(5) limited liability company;
18(6) unincorporated nonprofit association;
19(7) professional association; or
20(8) business trust, common law business trust or
21statutory trust.
22* * *
23"Filing association." A domestic or foreign association, the
24formation of which requires the filing of a public organic
25record. The term does not include a general partnership that is
26also:
27(1) a limited liability partnership; or
28(2) an electing partnership.
29"Filing entity." A domestic or foreign entity, the formation
30of which requires the filing of a public organic record. The
1term does not include a general partnership that is also:
2(1) a limited liability partnership; or
3(2) an electing partnership.
4"Foreign association." An association that is not a domestic
5association.
6* * *
7"Foreign entity." An entity that is not a domestic entity.
8"Foreign filing association." A foreign association, the
9formation of which requires the filing of a public organic
10record.
11"Fraternal benefit society." A fraternal benefit society as
12defined in section 2403 of the act of May 17, 1921 (P.L.682,
13No.284), known as The Insurance Company Law of 1921.
14"General partnership." A domestic or foreign partnership as
15defined in section 8311 (relating to partnership defined),
16whether or not it is a limited liability partnership or electing
17partnership.
18"Governance interest." A right under the organic law or
19organic rules of an association that is not a corporation for
20profit or not-for-profit, other than as a governor, agent,
21assignee or proxy, to:
22(1) receive or demand access to information concerning,
23or the books and records of, the association;
24(2) vote for the election of the governors of the
25association; or
26(3) receive notice of or vote on an issue involving the
27internal affairs of the association.
28"Governor." A person by or under whose authority the powers
29of an association are exercised and under whose direction the
30activities and affairs of the association are managed pursuant
1to the organic law and organic rules of the association. The
2term includes:
3(1) A director of a corporation for profit or a
4shareholder of a statutory close corporation that is deemed
5to be a director under section 2332(a) (relating to
6management by shareholders).
7(2) A director or member of an other body of a
8corporation not-for-profit.
9(3) A partner of a general partnership.
10(4) A general partner of a limited partnership.
11(5) A general partner of an electing partnership.
12(6) A manager of a manager-managed limited liability
13company or a member that has the right to participate
14materially in the management of a member-managed limited
15liability company.
16(7) A manager of an unincorporated nonprofit
17association.
18(8) A member of the board of governors of a professional
19association.
20(9) A trustee of a business trust, common law business
21trust or statutory trust.
22"Health maintenance organization." An entity that is subject
23to the act of December 29, 1972 (P.L.1701, No.364), known as the
24Health Maintenance Organization Act.
25"Hospital plan corporation." A hospital plan corporation as
26defined in 40 Pa.C.S. § 6101 (relating to definitions).
27* * *
28"Interest." A share in a corporation for profit, a
29membership or share in a corporation not-for-profit, a
30governance interest or a distributional interest. The term
1includes the following:
2(1) A governance interest or transferable interest in a
3general partnership.
4(2) A governance interest or transferable interest in a
5limited partnership.
6(3) A governance interest or transferable interest in a
7limited liability company.
8(4) A membership in an unincorporated nonprofit
9association.
10(5) An ownership interest in a professional association.
11(6) A beneficial interest in a business trust, common-
12law business trust or statutory trust.
13"Interest holder." A direct or record holder of an interest.
14The term includes the following:
15(1) A shareholder of a corporation for profit.
16(2) A member or shareholder of a corporation not-for-
17profit.
18(3) A partner or transferee in a general partnership.
19(4) A general or limited partner or transferee in a
20limited partnership.
21(5) A member or transferee in a limited liability
22company.
23(6) A member of an unincorporated nonprofit association.
24(7) An associate in a professional association.
25(8) A beneficiary or beneficial owner of record of a
26business trust, common-law business trust or statutory trust.
27* * *
28"Jurisdiction." When used to refer to a political entity,
29the United States, a state, a foreign country or a political
30subdivision of a foreign country.
1"Jurisdiction of formation." The jurisdiction whose law
2includes the organic law of an association.
3* * *
4"Limited liability limited partnership." A domestic or
5foreign limited partnership for which there is in effect:
6(1) a statement of registration under Chapter 82
7(relating to registered limited liability partnerships);
8(2) a provision of its certificate of limited
9partnership electing to be subject to Chapter 82; or
10(3) a similar filing or provision under the organic law
11of a foreign partnership.
12"Limited liability partnership." A domestic or foreign
13general partnership for which there is in effect:
14(1) a statement of registration under Chapter 82
15(relating to registered limited liability partnerships); or
16(2) a similar filing under the organic law of a foreign
17general partnership.
18"Limited partnership." A domestic or foreign limited
19partnership as defined in section 8503 (relating to definitions
20and index of definitions), whether or not it is a limited
21liability limited partnership or electing partnership.
22"Nonfiling association." An association that is not a filing
23association.
24"Nonprofit corporation." A domestic or foreign nonprofit
25corporation as defined in section 5103 (relating to
26definitions), whether or not it is a cooperative corporation.
27"Nonregistered foreign association." A foreign association
28that is not registered to do business in this Commonwealth
29pursuant to a filing with the department.
30* * *
1"Organic law." The law of the jurisdiction of formation of
2an association governing its internal affairs.
3"Organic rules." The public organic record and private
4organic rules of an association.
5"Principal office." The principal executive office of an
6association, whether or not the office is located in this
7Commonwealth.
8"Private organic rules." The rules that govern the internal
9affairs of an association, are binding on all its interest
10holders and are not part of its public organic record, if any.
11The term includes the following:
12(1) The bylaws of a corporation for profit.
13(2) The bylaws of a corporation not-for-profit.
14(3) The partnership agreement of a general partnership.
15(4) The partnership agreement of a limited partnership.
16(5) The operating agreement of a limited liability
17company.
18(6) The governing principles of an unincorporated
19nonprofit association.
20(7) The bylaws of a professional association.
21(8) The bylaws or similar rules, by whatever name they
22may be referred to, of a business trust, common-law business
23trust or statutory trust.
24* * *
25"Professional association." An association as defined in
26section 9302 (relating to application of chapter).
27"Professional health service corporation." A professional
28health service corporation as defined in 40 Pa.C.S. § 6302
29(relating to definitions).
30* * *
1"Property." All property, whether real, personal or mixed,
2or tangible or intangible, or any right or interest therein,
3including rights under contracts and other binding agreements.
4"Public organic record." The document the public filing of
5which by the department or a similar agency in another
6jurisdiction is required to form an association. The term
7includes the following:
8(1) The articles of incorporation of a corporation for
9profit.
10(2) The articles of incorporation of a corporation not-
11for-profit.
12(3) The certificate of limited partnership of a limited
13partnership.
14(4) The certificate of organization of a limited
15liability company.
16(5) The articles of association of a professional
17association.
18(6) The declaration of trust or other instrument of a
19business trust or statutory trust which has been filed by the
20department or a similar agency in another jurisdiction.
21"Receipt." Actual coming into possession.
22"Receive." To actually come into possession.
23* * *
24"Registered corporation." A corporation defined in section
252502 (relating to registered corporation status).
26"Registered foreign association." A foreign association that
27is registered to do business in this Commonwealth pursuant to a
28filing in the department.
29* * *
30["Savings association." An association as defined in section
1102(3) of the former act of December 14, 1967 (P.L.746, No.345),
2known as the Savings Association Code of 1967.]
3* * *
4"Transfer." Includes:
5(1) an assignment;
6(2) a conveyance;
7(3) a sale;
8(4) a lease;
9(5) an encumbrance, including a mortgage or security
10interest;
11(6) a gift; and
12(7) a transfer by operation of law.
13"Type." When used with respect to an association, a generic
14form:
15(1) recognized at common law; or
16(2) organized under an organic law, whether or not some
17associations organized under that organic law are subject to
18provisions of that law which create different categories of
19the form of association.
20"Unincorporated nonprofit association." A nonprofit
21association as defined in section 9112 (relating to
22definitions).
23* * *
24(b) Application of definitions.--The words and phrases
25defined in subsection (a) shall have the same meanings when used
26in 54 Pa.C.S. (relating to names) except to the extent those
27meanings are inconsistent with the provisions of that title.
28Section 1.2. Section 109(b) of Title 15 is amended to read:
29§ 109. Name of commercial registered office provider in lieu of
30registered address.
1* * *
2(b) Statement of address of commercial registered office.--A
3domestic [business corporation or qualified foreign business
4corporation, partnership or other] or registered foreign
5association engaged in the business of maintaining registered
6offices in this Commonwealth for corporations or other
7associations may file in the department a statement of address
8of commercial registered office executed by the representing
9association or a division thereof and setting forth:
10(1) The name of the representing association.
11(2) The form of organization of the representing
12association.
13(3) A statement that it is in the business of
14maintaining registered offices in this Commonwealth for
15corporations or other associations.
16(4) The address, including street and number, if any, of
17a place of business of the representing association in this
18Commonwealth to which communications and other matters
19directed to each person represented by it may be delivered.
20* * *
21Section 2. Title 15 is amended by adding sections to read:
22§ 112. Receipt of electronic communications.
23(a) Requirements.--Unless otherwise provided in the organic
24rules of an entity or otherwise agreed between the sender and
25the recipient, an electronic communication is received when it:
26(1) enters an information processing system that the
27recipient has designated or uses for the purpose of receiving
28electronic records or information of the type sent and from
29which the recipient is able to retrieve the electronic
30record; and
1(2) is in a form capable of being processed by that
2system.
3(b) Awareness not required.--An electronic communication is
4received under subsection (a) even if no individual is aware of
5its receipt.
6(c) Presumption.--Receipt of an electronic acknowledgment
7from an information processing system described in subsection
8(a) establishes that a communication was received but, by
9itself, does not establish that the content sent corresponds to
10the content received.
11§ 113. Delivery of document.
12(a) Permissible means.--Permissible means of delivery of a
13document in record form include:
14(1) personal delivery;
15(2) mail;
16(3) conventional commercial practice; and
17(4) electronic transmission.
18(b) Delivery to department.--Delivery to the department of a
19document in record form is effective only on receipt by the
20department.
21(c) Delivery by department.--Except as provided by law
22other than this title, the department may deliver a document in
23record form to a person by delivering it:
24(1) in person to the person that submitted it for
25filing;
26(2) to the address of the person's registered office;
27(3) to the principal office address of the person; or
28(4) to another address the person provides to the
29department for delivery.
30Section 3. Section 136(c) of Title 15 is amended and the
1section is amended by adding a subsection to read:
2§ 136. Processing of documents by Department of State.
3* * *
4(c) Effective date and time.--Except as otherwise provided
5in this title and subject to sections 138 (relating to statement
6of correction) and 141 (relating to withdrawal of filing before
7effectiveness), a document [shall become] filed by the
8department under a provision of this title is effective [upon
9the filing thereof in the department.]:
10(1) on the date and at the time of its delivery to the
11department;
12(2) on the date of delivery and at the time specified in
13the document as its effective time, if the time specified is
14later than the time under paragraph (1); or
15(3) at a specified delayed effective date and:
16(i) at a specified time; or
17(ii) if no time is specified, at 12:01 a.m. on the
18date specified.
19* * *
20(e) Redaction of information.--If law other than this title
21prohibits the disclosure by the department of information
22contained in a document in record form delivered to the
23department for filing, the department shall accept the document
24if it otherwise complies with this title but may redact the
25information.
26Section 3.1. Section 138 of Title 15 is amended to read:
27§ 138. Statement of correction.
28(a) Filing of statement.--Whenever any document authorized
29or required to be [filed in the Department of State] delivered
30to the department for filing by any provision of this title has
1been so filed and is an inaccurate record of the [corporate or
2other] action therein referred to or was defectively or
3erroneously executed, the document may be corrected by [filing
4in the department] delivering to the department for filing a
5statement of correction [of the document]. The statement of
6correction, except as provided in subsection (c), shall be
7[executed] signed by the association or other person that
8[effected the] delivered the inaccurate, defective or erroneous
9document for filing and shall set forth:
10(1) The name of the association or other person and,
11subject to section 109 (relating to name of commercial
12registered office provider in lieu of registered address),
13the location, including street and number, if any, of its
14registered or other office.
15(2) The statute by or under which the [corporation was
16incorporated] association was formed, or the preceding filing
17was made, in the case of a filing that does not constitute a
18part of the [articles of incorporation of a corporation]
19public organic record of an association.
20(3) The inaccuracy or defect to be corrected.
21(4) The portion of the document requiring correction in
22corrected form or, if the document was erroneously executed,
23a statement that the original document shall be deemed
24reexecuted or stricken from the records of the department, as
25the case may be.
26(b) Effect of filing.--
27(1) The corrected document shall be effective:
28(i) Upon filing in the department, as to those
29persons who are substantially and adversely affected by
30the correction.
1(ii) As of the date the original document was
2effective, as to all other persons.
3(2) A filing under this section shall not have the
4effect of causing [original articles of incorporation of a
5corporation or a similar type of document creating any other
6form of association] the original public organic record of an
7association to be stricken from the records of the department
8but the [articles or other document] public organic record
9may be corrected under this section.
10(c) Filing pursuant to court order.--If the association or
11other person refuses to [file] deliver to the department for
12filing an appropriate statement of correction under this section
13within ten business days after any person adversely affected has
14made a [written demand therefor] demand in record form for the
15correction, the affected person may apply to the court for an
16order to compel the filing. If the court finds that a document
17on file in the department is inaccurate [or defective],
18defective or erroneous, it may direct the association or other
19person who effected the inaccurate, defective or erroneous
20filing to [file] deliver to the department for filing an
21appropriate statement of correction [in the department], or it
22may order the clerk to execute the statement under the seal of
23the court and cause the statement to be [filed in the
24department] delivered to the department for filing. In the
25absence of fraud, an application may not be made to a court
26under this subsection with respect to a document more than one
27year after the date on which it was originally filed in the
28department.
29(d) Cross reference.--See section 135 (relating to
30requirements to be met by filed documents).
1Section 4. Section 139(a) of Title 15 is amended and the
2section is amended by adding a subsection to read:
3§ 139. Tax clearance of certain fundamental transactions.
4(a) [General rule] Requirement.--Except as provided in
5subsection (c) or (d), [a domestic association shall not file
6articles or a certificate of merger or consolidation effecting a
7merger or consolidation into a nonqualified foreign association
8or articles or a certificate of dissolution or a statement of
9revival, a qualified foreign association shall not file an
10application for termination of authority or similar document in
11the Department of State and a domestic association shall not
12file articles or a certificate of division dividing solely into
13nonqualified foreign associations unless the articles,
14certificate, application or other document are accompanied by]
15clearance certificates from the Department of Revenue and the
16[Office of Employment Security of the] Department of Labor and
17Industry, evidencing the payment by the association of all taxes
18and charges due the Commonwealth required by law[.] must be
19delivered to the department for filing when any of the following
20is delivered to the department for filing:
21(1) Articles or a statement or certificate of merger
22merging a domestic association into a nonregistered foreign
23association.
24(2) Articles or a statement or certificate of conversion
25or domestication effecting a conversion or domestication of a
26domestic association into a nonregistered foreign
27association.
28(3) Articles or a certificate of dissolution or a
29statement of revival of a domestic association.
30(4) An application for termination of registration or
1similar document by a registered foreign association.
2(5) Articles or a statement or certificate of division
3dividing a domestic association solely into foreign
4associations.
5* * *
6(d) Registration of foreign associations.--It shall not be
7necessary to deliver clearance certificates under subsection (a)
8if, simultaneously with the delivery of the articles, statement
9or certificate of merger, conversion, division or domestication:
10(1) the foreign association that is the surviving,
11converted or domesticated association registers to do
12business in this Commonwealth; or
13(2) at least one of the new foreign associations
14resulting from the division registers to do business in this
15Commonwealth.
16Section 5. Title 15 is amended by adding sections to read:
17§ 141. Withdrawal of filing before effectiveness.
18(a) General rule.--A document in record form delivered to
19the department for filing may be withdrawn before it takes
20effect by delivering to the department for filing a statement of
21withdrawal, except that a document that may be abandoned under
22any of the following sections may not be withdrawn under this
23section:
24Section 334 (relating to amendment or abandonment of plan
25of merger).
26Section 344 (relating to amendment or abandonment of plan
27of interest exchange).
28Section 354 (relating to amendment or abandonment of plan
29of conversion).
30Section 365 (relating to amendment or abandonment of plan
1of division).
2Section 374 (relating to amendment or abandonment of plan
3of domestication).
4(b) Requirements for statement of withdrawal.--A statement
5of withdrawal must:
6(1) be signed by a person with the authority to sign the
7statement; and
8(2) identify the document to be withdrawn.
9(c) Effect of statement of withdrawal.--Upon filing by the
10department of a statement of withdrawal, the action or
11transaction evidenced by the original document shall not take
12effect.
13§ 142. Effect of signing filings.
14(a) Affirmation of truth.--Signing a document delivered to
15the department for filing is an affirmation under the penalties
16provided in 18 Pa.C.S. § 4904 (relating to unsworn falsification
17to authorities) that the facts stated in the document are true
18in all material respects.
19(b) Signature by agent or legal representative.--A document
20filed under this title may be signed by an agent. If this title
21requires a particular individual to sign a document and the
22individual is deceased or incompetent, the document may be
23signed by a legal representative of the individual on behalf of
24the individual.
25(c) Affirmation of authority.--A person that signs a
26document delivered to the department for filing affirms as a
27fact that the person is authorized to sign the document.
28§ 143. Liability for inaccurate information in filing.
29If a document that is delivered to the department for filing
30under this title and filed by the department contains inaccurate
1information at the time of delivery to the department, a person
2that suffers a loss by reliance on the information may recover
3damages for the loss from a person that signed the record or
4caused another to sign it on behalf of the person and knew at
5the time the record was delivered that the information was
6inaccurate.
7§ 144. Signing and filing pursuant to judicial order.
8(a) Petition.--If a person required by this title to sign a
9document or deliver a document to the department for filing
10under this title does not do so, another person that is
11aggrieved may petition the court to order:
12(1) the person to sign the document;
13(2) the person to deliver the document to the department
14for filing; or
15(3) the department to file the document unsigned.
16(b) Association.--If a petitioner under subsection (a) is
17not the association to which the document pertains, the
18petitioner shall make the association a party to the action.
19(c) Effect.--A record filed under subsection (a)(3) is
20effective without being signed.
21§ 145. Subsistence certificate.
22(a) General rule.--On request of a person, the department
23shall issue:
24(1) a subsistence certificate for a domestic filing
25entity or domestic limited liability partnership; or
26(2) a certificate of registration for a registered
27foreign association.
28(b) Contents of certificate.--A certificate under subsection
29(a) must state:
30(1) the name of the domestic filing entity or domestic
1limited liability partnership or the name under which the
2registered foreign association is registered in this
3Commonwealth.
4(2) in the case of a domestic filing entity or domestic
5limited liability partnership, that the entity is currently
6subsisting on the records of the department; and
7(3) in the case of a registered foreign association,
8that it is registered to do business in this Commonwealth.
9(c) Effect of certificate.--Subject to any qualification
10stated in the certificate, a certificate issued by the
11department under subsection (a) may be relied on as conclusive
12evidence of the facts stated in the certificate.
13Section 6. Section 153(a) of Title 15 is amended to read:
14§ 153. Fee schedule.
15(a) General rule.--The nonrefundable fees of the bureau,
16including fees for the public acts and transactions of the
17Secretary of the Commonwealth administered through the bureau,
18shall be as follows:
19[(1) Domestic corporations: |
| |||||
20(i) Articles of incorporation, letters |
$125 | |||||
23(ii) Articles or agreement or similar |
70 | |||||
25(iii) Additional fee for each association |
40 | |||||
27(iv) Additional fee for each new association |
125 | |||||
29(v) Articles of conversion or a similar |
70 | |||||
1(vi) Each ancillary transaction............. | 70 | |||||
2(2) Foreign corporations: |
| |||||
3(i) Certificates of authority or similar |
250 |
5(ii) Amended certificate of authority or |
250 |
7(iii) Domestication......................... | 125 |
8(iv) Statement of merger or consolidation or |
70 |
12(v) Additional fee for each qualified |
40 |
15(vi) Each ancillary transaction............. | 70 |
16(3) Partnerships and limited liability companies: |
|
17(i) Certificate of limited partnership or |
125 |
22(ii) Certificate of merger, consolidation or |
70 |
24(iii) Additional fee for each association |
40 |
26(iv) Additional fee for each new association |
125 |
28(v) Application for registration of foreign |
250 |
30(vi) Certificate of amendment of
1registration of foreign limited partnership or |
250 |
3(vii) Statement of registration of |
125 |
6(viii) Domestication of foreign limited |
125 |
8(ix) Each ancillary transaction............. | 70 |
9(4) Unincorporated nonprofit associations: |
|
10(i) Statement appointing an agent to receive |
70 |
12(ii) Resignation of appointed agent.......... | 40 |
13(iii) Amendment or cancellation of statement |
70 |
15(5) Business trusts: |
|
16(i) Deed of trust or other initial |
125 |
19(ii) Each ancillary transaction.............. | 70 |
20(6) Fictitious names: |
|
21(i) Registration............................ | 70 |
22(ii) Each ancillary transaction............. | 70 |
23(7) Service of process: |
|
24(i) Each defendant named or served.......... | 70 |
25(ii) (Reserved)............................. |
|
26(8) Trademarks, emblems, union labels, |
|
28(i) Trademark registration.................. | 50 |
29(ii) Each ancillary trademark transaction... | 50 |
30(iii) Any other registration under this
1paragraph........................................ |
70 |
2(iv) Any other ancillary transaction under |
70 |
4(9) Uniform Commercial Code: As provided in 13 |
|
6(10) Copy fees, including copies furnished under |
|
8(i) Each page of photocopy furnished........ | 3 |
9(ii) (Reserved)............................. |
|
10(11) Certification fees: |
|
11(i) For certifying copies of any document or |
40 |
14(ii) (Reserved)............................. |
|
15(iii) For issuing any other certificate of |
40 |
18(12) Report of record search other than a search 19under paragraph (9): |
|
20(i) For preparing and providing a report of |
15 |
23(ii) (Reserved)............................. |
|
24(13) Reservation and registration of names: |
|
25(i) Reservation of association name......... | 70 |
26(ii) Registration of foreign or other |
70 |
28(14) Change of registered office or address: |
|
29(i) Each statement of change of registered |
5 | |||||
1(ii) Each statement or certificate of change |
5 | |||||
3(iii) Each statement of change of address... | 5 | |||||
4(15) Contingent domestication: |
|
5(i) Statement of contingent domestication... | 125 |
6(ii) Each year, or portion of a year, during |
1,500 |
9(16) Expedited service: |
|
10(i) For the processing of any filing under |
1,000 |
15(ii) For the processing of any filing under 20................................................. |
300 |
21(iii) For processing of any filing under |
100] |
25(1) Domestic corporations: |
|
26(i) Articles of incorporation, letters patent |
$125 |
28(ii) Each ancillary transaction.............. | 70 |
29(2) Foreign associations: |
|
30(i) Registration statement or similar
1qualifications to do business..................... |
250 |
2(ii) Amendment of registration statement or |
250 |
4(iii) Domestication of alien association |
250 |
7(iv) Statement of merger, division or |
70 |
11(v) Additional fee for each qualified foreign |
40 |
14(vi) Each ancillary transaction.............. | 70 |
15(3) Partnerships and limited liability companies: |
|
16(i) Certificate of limited partnership or |
125 |
19(ii) Statement of registration of registered |
125 |
22(iii) Each ancillary transaction............. | 70 |
23(4) Unincorporated nonprofit associations: |
|
24(i) Statement appointing an agent to receive |
70 |
26(ii) Resignation of appointed agent.......... | 40 |
27(iii) Amendment or cancellation of statement |
70 |
29(5) Business trusts: |
|
30(i) Declaration of trust or other initial
1instrument for a business trust................... |
125 |
2(ii) Each ancillary transaction.............. | 70 |
3(6) Fictitious names: |
|
4(i) Registration............................. | 70 |
5(ii) Each ancillary transaction.............. | 70 |
6(7) Service of process: |
|
7(i) Each defendant named or served........... | 70 |
8(ii) (Reserved). |
|
9(8) Trademarks, emblems, union labels, |
|
11(i) Trademark registration................... | 50 |
12(ii) Each ancillary trademark transaction.... | 50 |
13(iii) Another registration under this |
70 |
15(iv) Another ancillary transaction under this |
70 |
17(9) Uniform Commercial Code: |
|
| |
20(ii) (Reserved). |
|
21(10) Copy fees, including copies furnished under |
|
23(i) Each page of photocopy furnished......... | 3 |
24(ii) (Reserved). |
|
25(11) Certification fees: |
|
26(i) For certifying copies of a document or |
40 |
29(ii) (Reserved). |
|
30(iii) For issuing any other certificate of
1the Secretary of the Commonwealth or the |
40 |
3(iv) For preparing and issuing an engrossed |
125 |
5(12) Report of record search other than a search |
|
7(i) For preparing and providing a report of a |
15 |
10(ii) (Reserved). |
|
11(13) Reservation and registration of names: |
|
12(i) Reservation of association name.......... | 70 |
13(ii) Registration of foreign association name | 70 |
14(14) Change of registered office or address: |
|
15(i) Each statement of change of registered |
5 |
17(ii) Each statement or certificate of change |
5 |
19(iii) Each statement of change of address.... | 5 |
20(15) Expedited service: |
|
21(i) For the processing of a filing under this |
1,000 |
26(ii) For the processing of a filing under |
300 |
30(iii) For processing of a filing under this
1title or 13 Pa.C.S. which is received by the |
100 |
4(16) Entity transactions: |
|
5(i) Statement of merger, interest exchange, |
70 |
7(ii) Additional fee for each association that |
40 |
9(iii) Additional fee for each new association |
125 |
11(iv) Each ancillary transaction.............. | 70 |
12* * *
13Section 7. Subchapter D heading of Chapter 1 of Title 15 is
14amended to read:
15SUBCHAPTER D
16[DEFINITIVE AND CONTINGENT] DOMESTICATION
17OF CERTAIN ALIEN ASSOCIATIONS
18Section 8. Section 161(b) introductory paragraph, (1) and
19(5), (e) and (f) of Title 15 are amended to read:
20§ 161. Domestication of certain alien associations.
21* * *
22(b) Statement of domestication.--The statement of
23domestication shall be [executed] signed by the association and
24shall set forth in the English language:
25(1) The name of the association. If the name is in a
26foreign language, it shall be set forth in Roman letters or
27characters or Arabic or Roman numerals. If the name is one
28that is rendered unavailable for use by a [corporation by any
29provision of section 1303(b) or (c) (relating to corporate
30name)] domestic entity by section 202(b) or (c) (relating to
1requirements for names generally), the association shall
2adopt a new name, in accordance with any procedures for
3changing the name of the association that are applicable
4prior to the domestication of the association, and shall set
5forth the new name in the statement.
6* * *
7(5) A statement that the filing of the statement of
8domestication and, if desired, the renunciation of the prior
9domicile has been authorized (unless its [charter or other
10organic documents] organic rules require a greater vote) by a
11majority in interest of the [shareholders, members or other
12proprietors] interest holders of the association.
13* * *
14(e) Exclusion.--An association that can be domesticated
15under [any of the following sections shall not be domesticated
16under this section:
17Section 4161 (relating to domestication).
18Section 6161 (relating to domestication).
19Section 8590 (relating to domestication).
20Section 8982 (relating to domestication).
21Section 9501(a)(1)(ii) (relating to application and effect of
22chapter)] Subchapter G of Chapter 3 (relating to domestication)
23shall not be domesticated under this section.
24(f) Definition.--As used in this section, the term
25"association," except as restricted by subsection (e), includes
26any [alien] incorporated organization, private law corporation
27(whether or not organized for business purposes), public law
28corporation, partnership, proprietorship, joint venture,
29foundation, trust, association or similar organization or entity
30existing under the laws of any jurisdiction other than this
1Commonwealth.
2* * *
3Section 8.1. Section 162 of Title 15 is repealed:
4[§ 162. Contingent domestication of certain alien associations.
5(a) General rule.--Any association as defined in subsection
6(i) may become a contingent domestic association by filing in
7the Department of State a statement of contingent domestication.
8The statement of contingent domestication and all papers and
9information relating thereto shall remain confidential and shall
10not be available for public inspection until and unless the
11association files a statement of consummation of domestication
12as provided in subsection (c).
13(b) Statement of contingent domestication.--The statement of
14contingent domestication shall be executed by the association
15and shall set forth in the English language:
16(1) In the case of:
17(i) a corporation subject to section 4161 (relating
18to domestication), the statements required to be set
19forth in articles of domestication (except the statement
20required by section 4161(b)(6));
21(ii) a corporation subject to section 6161 (relating
22to domestication), the statements required to be set
23forth in articles of domestication (except the statement
24required by section 6161(b)(6));
25(iii) a limited partnership subject to section 8590
26(relating to domestication), the statements required to
27be set forth in a certificate of domestication (except
28the statement required by section 8590(b)(5));
29(iv) a limited liability company subject to section
308982 (relating to domestication), the statements required
1to be set forth in a certificate of domestication (except
2the statement required by section 8982(b)(5));or
3(v) any other association, the statements required
4by section 161(b) (relating to statement of
5domestication) to be set forth in a statement of
6domestication (except the statement required by section
7161(b)(5)).
8(2) A statement that the effectiveness of the statement
9is contingent upon the subsequent filing of a statement of
10consummation of domestication.
11(3) A statement that the filing of the statement of
12contingent domestication and the delegation of authority to
13file a statement of consummation of domestication has been
14authorized (unless its charter or other organic documents
15require a greater vote):
16(i) by a majority vote of the votes cast by all
17shareholders entitled to vote thereon and, if any class
18of shares is entitled to vote thereon as a class, a
19majority of the votes cast in each class vote, in the
20case of a corporation subject to section 4161;
21(ii) by a majority vote of the votes cast by all
22members, if any, entitled to vote thereon and, if any
23class of members is entitled to vote thereon as a class,
24a majority of the votes cast in each class vote, in the
25case of a corporation subject to section 6161;
26(iii) by a majority vote of the votes cast by all
27partners entitled to vote thereon and, if any class of
28partners is entitled to vote thereon as a class, a
29majority of the votes cast in each class vote, in the
30case of a limited partnership subject to section 8590;
1(iv) by a majority vote of the votes cast by all
2members entitled to vote thereon and, if any class of
3members is entitled to vote thereon as a class, a
4majority of the votes cast in each class vote, in the
5case of a limited liability company subject to section
68982; or
7(v) by a majority in interest of the shareholders,
8members or other proprietors of the association in any
9other case.
10(c) Statement of consummation of domestication.--At any time
11after the filing of a statement of contingent domestication, the
12association may file in the department a statement of
13consummation of domestication which shall be executed by the
14association and shall set forth:
15(1) The name of the association as set forth in its
16statement of contingent domestication.
17(2) A statement that either:
18(i) an emergency condition exists in the
19jurisdiction the law of which governs the internal
20affairs of the association and that in the judgment of
21the management of the association a temporary transfer of
22the domicile of the association to this Commonwealth is
23warranted by the circumstances; or
24(ii) an event has occurred that, under the law of
25the jurisdiction governing the internal affairs of the
26association, permits the association to transfer its
27domicile.
28(d) Statement of termination of domestication.--At any time
29after the filing of a statement of consummation of
30domestication, the association may file in the department a
1statement of termination of domestication which shall be
2executed by the association and shall set forth:
3(1) The name of the association in the form set forth in
4the prior filings under this section.
5(2) If a statement of consummation of domestication has
6theretofore been filed and is then in effect, a statement
7that the association elects to terminate its domicile in this
8Commonwealth.
9(3) A statement that either:
10(i) the statement of contingent domestication is
11reinstated pending the filing in the department of a new
12statement of consummation of domestication; or
13(ii) the statement of contingent domestication is
14withdrawn.
15(e) Execution of filings.--All documents filed under this
16section shall be signed on behalf of the association by any
17authorized person.
18(f) Effect of filing statement of consummation of
19domestication.--Upon the filing of a statement of consummation
20of domestication, and until the filing of a statement of
21termination of domestication, the association shall have the
22status under the law of this Commonwealth of:
23(1) a business corporation domesticated under section
244161, in the case of a corporation subject to that section;
25(2) a nonprofit corporation domesticated under section
266161, in the case of a corporation subject to that section;
27(3) a limited partnership domesticated under section
288590, in the case of a limited partnership subject to that
29section;
30(4) a limited liability company domesticated under
1section 8982, in the case of a limited liability company
2subject to that section; or
3(5) an association domesticated under section 161, in
4any other case.
5(g) Effect of filing a statement of termination of
6domestication.--Upon the filing of a statement of termination of
7domestication, the association shall under the law of this
8Commonwealth revert to the status it held prior to the filing
9of:
10(1) the statement of consummation of domestication, if
11the statement of termination of domestication states that the
12statement of contingent domestication is reinstated; or
13(2) the statement of contingent domestication, if the
14statement of termination of domestication states that the
15statement of contingent domestication is withdrawn.
16(h) Annual renewal.--A renewal application may be filed
17between October 1 and December 31 in each year and shall extend
18the applicability of this section for the following calendar
19year. Otherwise the association shall not be entitled to any of
20the benefits of this section. See section 153(a)(14) (relating
21to contingent domestication).
22(i) Definition.--As used in this section, the term
23"association" includes any incorporated organization, private
24law corporation (whether or not organized for business
25purposes), public law corporation, partnership, proprietorship,
26joint venture, foundation, trust, association or similar
27organization or entity if such association or entity immediately
28prior to effecting an initial filing under this section is an
29association or entity governed by the law of any jurisdiction
30other than the United States or any state, Puerto Rico or any
1possession or territory of the United States.
2(j) Cross references.--See sections 134 (relating to
3docketing statement) and 135 (relating to requirements to be met
4by filed documents).]
5Section 9. Title 15 is amended by adding chapters to read:
6CHAPTER 2
7ENTITIES GENERALLY
8Subchapter
9A. Names
10B. (Reserved)
11SUBCHAPTER A
12NAMES
13Sec.
14201. Definitions.
15202. Requirements for names generally.
16203. Corporation names.
17204. Partnership and limited liability company names.
18205. Business trust names.
19206. Requirements for foreign association names.
20207. Required name changes by senior associations.
21208. Reservation of name.
22209. Registration of name of nonregistered foreign association.
23§ 201. Definitions.
24The following words and phrases when used in this subchapter
25shall have the meanings given to them in this section unless the
26context clearly indicates otherwise:
27"Covered association." Any of the following:
28(1) a domestic filing entity;
29(2) a domestic limited liability partnership;
30(3) an electing partnership; or
1(4) a registered foreign association.
2"Proper name." The name set forth in:
3(1) the public organic record of a domestic filing
4association;
5(2) the statement of registration of a limited liability
6partnership;
7(3) the statement of election of an electing
8partnership; or
9(4) the statement of registration of a registered
10foreign association under section 412(a)(1)(i) (relating to
11foreign registration statement) or, if that name does not
12comply with this section, the name set forth in the statement
13under section 412(a)(1)(ii).
14§ 202. Requirements for names generally.
15(a) General rule.--The proper name of a covered association
16may be in any language, but it must be expressed in Roman
17letters or characters or Arabic or Roman numerals.
18(b) Duplicate use of names.--Except as provided in
19subsection (f), the proper name of a covered association must be
20distinguishable on the records of the department from the
21following:
22(1) The proper name of another covered association or
23the name of an association registered at any time under 54
24Pa.C.S. Ch. 5 (relating to corporate and other association
25names), unless the covered association or other association
26has:
27(i) stated that it is about to change its name, is
28about to cease to do business, is being wound up or is a
29foreign association about to withdraw from doing business
30in this Commonwealth, and the statement and a consent to
1the adoption of the name are delivered to the department
2for filing;
3(ii) filed a tax return or certificate with the
4Department of Revenue indicating that the covered
5association or other association is out of existence or
6has failed for a period of three successive years to file
7with the Department of Revenue a report or return
8required by law and the fact of the failure has been
9certified by the Department of Revenue to the Department
10of State;
11(iii) abandoned its name under the laws of its
12jurisdiction of formation, by amendment, merger,
13consolidation, division, expiration, dissolution or
14otherwise, without its name being adopted by a successor,
15and an official record of that fact, certified as
16provided under 42 Pa.C.S. § 5328 (relating to proof of
17official records), is presented by a person to the
18department; or
19(iv) had the registration of its name under 54
20Pa.C.S. Ch. 5 terminated.
21(2) A name that has been reserved or registered pursuant
22to section 208 (relating to reservation of name) or 209
23(relating to registration of name of nonregistered foreign
24association). A name shall be rendered unavailable for use
25under this subchapter by reason of the filing by the
26department of an assumed or fictitious name registration
27under 54 Pa.C.S. Ch. 3 (relating to fictitious names) only to
28the extent expressly provided in 54 Pa.C.S. Ch. 3.
29(c) Required approvals or conditions.--
30(1) The proper name of a covered association shall not
1imply that the association is:
2(i) A governmental agency of the Commonwealth or of
3the United States.
4(ii) A bank, bank and trust company, savings bank,
5private bank or trust company, as defined in the act of
6November 30, 1965 (P.L.847, No.356), known as the Banking
7Code of 1965, unless:
8(A) The association is a Pennsylvania bank
9holding company or is otherwise authorized by statute
10to use its name.
11(B) The association is a nonprofit corporation
12holding property in trust under section 5547
13(relating to authority to take and hold trust
14property) and has been converted from a trust company
15under Subchapter E of Chapter 3 (relating to
16conversion). The preceding sentence controls over
17section 805(b) of the Banking Code of 1965.
18(iii) An insurance company, nor contain any of the
19words "annuity," "assurance," "beneficial," "bond,"
20"casualty," "endowment," "fidelity," "fraternal,"
21"guaranty," "indemnity," "insurance," "insurer,"
22"reassurance," "reinsurance," "surety" or "title" when
23used in a manner as to imply that the association is
24engaged in the business of writing insurance or
25reinsurance as principal or any other words of like
26purport unless it is duly licensed as an insurance
27company by its jurisdiction of formation or the Insurance
28Department certifies that it has no objection to the use
29by the association or proposed association of the
30designation. The proper name of a domestic insurance
1company shall:
2(A) contain the word "mutual" only if it is a
3mutual insurance company; and
4(B) clearly designate the object and purpose of
5the association.
6(iv) A public utility furnishing electric or gas
7service to the public, unless the association or proposed
8association has as an express purpose the furnishing of
9service subject to the jurisdiction of the Pennsylvania
10Public Utility Commission or the Federal Energy
11Regulatory Commission.
12(v) A credit union. See 17 Pa.C.S. § 104 (relating
13to prohibition on use of words "credit union").
14(2) The proper name of a covered association shall not
15contain:
16(i) The word "college," "university" or "seminary"
17when used in a manner as to imply that it is an
18educational institution conforming to the standards and
19qualifications prescribed by the State Board of
20Education, unless there is submitted a certificate from
21the Department of Education certifying that the
22association or proposed association is entitled to use
23that designation.
24(ii) Words that constitute blasphemy, profane
25cursing or swearing or that profane the Lord's name.
26(iii) The words "engineer" or "engineering,"
27"surveyor" or "surveying" or any other word implying that
28any form of the practice of engineering or surveying as
29defined in the act of May 23, 1945 (P.L.913, No.367),
30known as the Engineer, Land Surveyor and Geologist
1Registration Law, is provided unless at least one of the
2individuals signing the initial public organic record of
3the association or one of the governors of the existing
4association has been properly registered with the State
5Registration Board for Professional Engineers in the
6practice of engineering or surveying and there is
7submitted to the department a certificate from the board
8to that effect.
9(iv) The words "architect" or "architecture" or any
10other word implying that any form of the practice of
11architecture as defined in the act of December 14, 1982
12(P.L.1227, No.281), known as the Architects Licensure
13Law, is provided unless at least one of the individuals
14signing the initial public organic record of the
15association or one of the governors of the existing
16association has been properly registered with the
17Architects Licensure Board in the practice of
18architecture and there is submitted to the department a
19certificate from the board to that effect.
20(v) The word "cooperative" or an abbreviation
21thereof unless the corporation is a cooperative
22corporation.
23(vi) Any other words prohibited by law. See section
24103 (relating to subordination of title to regulatory
25laws).
26(d) Other rights unaffected.--This section shall not
27abrogate or limit the law as to unfair competition or unfair
28practices nor derogate from the common law, the principles of
29equity or the provisions of 54 Pa.C.S. (relating to names) with
30respect to the right to acquire and protect trade names.
1(e) Remedies for violation of section.--The use of a name in
2violation of this section shall not vitiate or otherwise affect
3the existence or any acts of an association, but a court having
4jurisdiction may enjoin the association from using or continuing
5to use a name in violation of this section on the application
6of:
7(1) the Attorney General, acting on his or her own
8motion or at the instance of an administrative department,
9board or commission of this Commonwealth; or
10(2) a person adversely affected.
11(f) Court-ordered use of name.--Subsection (b) shall not
12apply if an association delivers to the department for filing a
13certified copy of a final judgment of a court of competent
14jurisdiction establishing the right of the association to use a
15name in this Commonwealth.
16§ 203. Corporation names.
17(a) Business corporations.--The proper name of a domestic or
18registered foreign business corporation must contain:
19(1) the word "corporation," "company," "incorporated" or
20"limited" or an abbreviation of any of the terms;
21(2) the word "association," "fund" or "syndicate"; or
22(3) words or abbreviations of like import used in a
23jurisdiction other than this Commonwealth.
24(b) Nonprofit corporations.--The proper name of a domestic
25nonprofit corporation or registered foreign corporation not-for-
26profit shall not be required to contain one of the words or
27abbreviations described under subsection (a).
28§ 204. Partnership and limited liability company names.
29(a) Limited liability partnerships.--The proper name of a
30domestic limited liability partnership or registered foreign
1limited liability partnership must contain the term "company,"
2"limited" or "limited liability partnership," or an abbreviation
3of one of those terms, or words or abbreviations of like import
4used in a jurisdiction other than this Commonwealth.
5(b) Limited partnerships.--The proper name of a domestic or
6registered foreign limited partnership:
7(1) shall not be required to contain a word or
8abbreviation indicating that it is a limited partnership;
9(2) if it is a limited liability limited partnership,
10must contain:
11(i) the term "company," "limited" or "limited
12liability limited partnership" or a term of like import;
13or
14(ii) an abbreviation of a term under subparagraph
15(i); and
16(3) may contain the name of a partner.
17(c) Limited liability companies.--The proper name of a
18domestic limited liability company or registered foreign limited
19liability company must contain the term "company," "limited" or
20"limited liability company," or an abbreviation of one of those
21terms, or words or abbreviations of like import used in a
22jurisdiction other than this Commonwealth.
23§ 205. Business trust names.
24The proper name of a domestic business trust or registered
25foreign business trust shall not be required to contain a word
26or abbreviation indicating that it is a business trust.
27§ 206. Requirements for foreign association names.
28(a) General rule.--The department shall not file a
29registration statement pursuant to section 412 (relating to
30foreign registration statement) for a foreign association that,
1except as provided under subsection (b), has a name that is
2rendered unavailable for use by a covered association under
3section 202(a), (b) or (c)(1)(i), (iii), (iv) or (v) or (2)
4(relating to requirements for names generally).
5(b) Exception.--The provisions of section 202(b) and (c)
6shall not prevent the filing of a registration statement of a
7foreign association setting forth a name that is prohibited by
8section 202(b) and (c) if the foreign association delivers to
9the department for filing a resolution of its governors adopting
10a name for use in registering to do business in this
11Commonwealth that is available for use by a covered association.
12§ 207. Required name changes by senior associations.
13(a) Loss of rights to name.--A covered association shall
14cease to have the exclusive right to its proper name if the
15association:
16(1) has failed to file in the Department of Revenue a
17report or a return required by law;
18(2) has filed in the Department of Revenue a tax return
19or certificate indicating that it is out of existence; or
20(3) has failed to file the most recent required
21decennial filing under 54 Pa.C.S. § 503 (relating to
22decennial filings required).
23(b) Adoption of new name on reactivation.--Upon the removal
24of the reason why a covered association has lost the exclusive
25right to its proper name under subsection (a), the association
26shall make inquiry with the Department of State with regard to
27the availability of its name and, if the name has been
28appropriated by another person, the covered association shall
29adopt a new name in accordance with law before resuming its
30activities.
1(c) Enforcement of undertaking to release name.--If a
2covered association has used a name that is not distinguishable
3on the records of the Department of State from the name of
4another association as permitted by section 202(b)(1) (relating
5to requirements for names generally) and the other association
6continues to use its name in this Commonwealth and does not
7change its name, cease to do business, be wound up or withdraw
8as it proposed to do in its consent or change its name as
9required by subsection (a), any court having jurisdiction may
10enjoin the other association from continuing to use its name or
11a name that is not distinguishable therefrom on the application
12of:
13(1) the Attorney General, acting on his or her own
14motion or at the instance of an administrative department,
15board or commission of this Commonwealth; or
16(2) any person adversely affected.
17§ 208. Reservation of name.
18(a) General rule.--The exclusive right to the use of a name
19may be reserved by any person. The reservation shall be made by
20delivering to the department an application to reserve a
21specified name, signed by the applicant. If the department finds
22that the name is available for use, it shall reserve the name
23for the exclusive use of the applicant for a period of 120 days.
24(b) Transfer of reservation.--The right to exclusive use of
25a name reserved pursuant to subsection (a) may be transferred to
26any other person by delivering to the department a notice in
27record form of the transfer, signed by the person who reserved
28the name, and specifying the name and address of the other
29person.
30(c) Cross references.--See:
1Section 134 (relating to docketing statement).
2Section 135 (relating to requirements to be met by filed
3documents).
4Section 209 (relating to registration of name of
5nonregistered foreign association).
6§ 209. Registration of name of nonregistered foreign
7association.
8(a) General rule.--A nonregistered foreign association may
9register its name under 54 Pa.C.S. Ch. 5 (relating to corporate
10and other association names) if the name is available for use by
11a registered foreign association pursuant to section 206
12(relating to requirements for foreign association names) by
13delivering to the department for filing an application for
14registration of name, signed by the association, setting forth:
15(1) The name of the association.
16(2) The address, including street and number, if any, of
17the principal office of the association.
18(b) Annual renewal.--An association that has in effect a
19registration of its name may renew the registration from year to
20year by annually delivering to the department for filing an
21application for renewal setting forth the facts required to be
22set forth in an original application for registration. A
23renewal application may be filed between October 1 and December
2431 in each year and shall extend the registration for the
25following calendar year.
26(c) Use of registered name.--A foreign association whose
27name registration is effective may register as a foreign
28association under the registered name or consent in record form
29to the use of that name by another association.
30(d) Cross references.--See sections 134 (relating to
1docketing statement) and 135 (relating to requirements to be met
2by filed documents).
3SUBCHAPTER B
4(RESERVED)
5CHAPTER 3
6ENTITY TRANSACTIONS
7Subchapter
8A. Preliminary Provisions
9B. Approval of Entity Transactions
10C. Merger
11D. Interest Exchange
12E. Conversion
13F. Division
14G. Domestication
15SUBCHAPTER A
16PRELIMINARY PROVISIONS
17Sec.
18311. Short title of chapter.
19312. Definitions.
20313. Relationship of chapter to antitakeover provisions.
21314. Regulatory conditions and required notices and approvals.
22315. Nature of transactions.
23316. Contents of plan.
24317. Contractual dissenters rights in entity transactions.
25318. Excluded entities and transactions.
26319. Party to plan or transaction.
27320. Submission of matters to interest holders.
28§ 311. Short title of chapter.
29This chapter shall be known and may be cited as the Entity
30Transactions Law.
1§ 312. Definitions.
2(a) Definitions.--The following words and phrases when used
3in this chapter shall have the meanings given to them in this
4subsection unless the context clearly indicates otherwise:
5"Acquired association." The domestic entity or foreign
6association, all of one or more classes or series of interests
7in which are acquired in an interest exchange.
8"Acquiring association." The domestic entity or foreign
9association that acquires all of one or more classes or series
10of interests of the acquired association in an interest
11exchange.
12"Conversion." A transaction authorized by Subchapter E
13(relating to conversion).
14"Converted association." The converting association as it
15continues in existence after a conversion.
16"Converting association." The domestic entity or domestic
17banking institution that approves a plan of conversion pursuant
18to section 353 (relating to approval of conversion) or the
19foreign association that approves a conversion pursuant to the
20law of its jurisdiction of formation.
21"Dividing association." The domestic entity that approves a
22plan of division pursuant to section 363 (relating to approval
23of division) or 364 (relating to division without interest
24holder approval) or the foreign association that approves a
25division pursuant to the law of its jurisdiction of formation.
26"Division." A transaction authorized by Subchapter F
27(relating to division).
28"Domesticated entity." The domesticating entity as it
29continues in existence after a domestication.
30"Domesticating entity." The domestic entity that approves a
1plan of domestication pursuant to section 373(a) (relating to
2approval of domestication) or the foreign entity that approves a
3domestication pursuant to section 373(b).
4"Domestication." A transaction authorized by Subchapter G
5(relating to domestication).
6"Interest exchange." A transaction authorized by Subchapter
7D (relating to interest exchange).
8"Interest holder liability." Either of the following:
9(1) Personal liability for a liability of an association
10that is imposed on a person either:
11(i) Solely by reason of the status of the person as
12an interest holder.
13(ii) By the organic rules of the association that
14make one or more specified interest holders or categories
15of interest holders liable in their capacity as interest
16holders for all or specified liabilities of the entity.
17(2) An obligation of an interest holder under the
18organic rules of an association to contribute to the
19association.
20"Merger." A transaction in which two or more merging
21associations are combined into a surviving association pursuant
22to a document filed by the department or similar office in
23another jurisdiction.
24"Merging association." A domestic entity, domestic banking
25institution or foreign association that is a party to a merger
26under Subchapter C (relating to merger) and exists immediately
27before the merger becomes effective.
28"New association." An association that is created by a
29division.
30"Plan." A plan of merger, plan of interest exchange, plan of
1conversion, plan of division or plan of domestication, as
2applicable.
3"Protected agreement." Either of the following:
4(1) A record evidencing indebtedness and any related
5agreement in effect on {the Legislative Reference Bureau
6shall insert here the effective date of this chapter}.
7(2) A protected governance agreement.
8"Protected governance agreement." Either of the following:
9(1) The organic rules of a domestic entity or foreign
10association in effect on {the Legislative Reference Bureau
11shall insert here on the effective date of this chapter}.
12(2) An agreement that is binding on any of the governors
13or interest holders of a domestic entity or foreign
14association on {the Legislative Reference Bureau shall insert
15here on the effective date of this chapter}.
16"Registered office." In the case of a domestic banking
17institution that is a corporation, the principal place of
18business of the corporation set forth in its articles of
19incorporation as required by section 1004 of the act of November
2030, 1965 (P.L.847, No.356), known as the Banking Code of 1965.
21"Resulting association." A dividing association, if it
22survives the division, or a new association.
23"Surviving association." The domestic entity, domestic
24banking institution or foreign association that continues in
25existence after or is created by a merger under Subchapter C
26(relating to merger).
27(b) Index of definitions.--Following is a nonexclusive list
28of definitions in section 102 (relating to definitions) that
29apply to this chapter:
30"Act" or "action."
1"Banking institution."
2"Department."
3"Dissenters rights."
4"Domestic entity."
5"Entity."
6"Filing entity."
7"Foreign entity."
8"Governor."
9"Interest."
10"Interest holder."
11"Obligation."
12"Organic law."
13"Organic rules."
14"Private organic rules."
15"Property."
16"Public organic record."
17"Record form."
18"Registered foreign association."
19"Representative."
20"Sign."
21"Transfer."
22"Type."
23§ 313. Relationship of chapter to antitakeover provisions.
24A transaction under this chapter to which a registered
25corporation is a party may not impair any right or obligation
26that a person has under, and may not make applicable to the
27corporation, any provision of section 2538 (relating to approval
28of transactions with interested shareholders) or Subchapters E
29(relating to control transactions), F (relating to business
30combinations), G (relating to control-share acquisitions), H
1(relating to disgorgement by certain controlling shareholders
2following attempts to acquire control), I (relating to severance
3compensation for employees terminated following certain control-
4share acquisitions) and J (relating to business combination
5transactions-labor contracts) of Chapter 25, nor shall it change
6the standard of care applicable to the directors under
7Subchapter B of Chapter 17 (relating to fiduciary duty) unless:
8(1) If the corporation does not survive the transaction,
9the transaction satisfies any requirements of the provision.
10(2) If the corporation survives the transaction, the
11approval of the transaction is by a vote of the shareholders
12or directors which would be sufficient to impair the right or
13obligation under, or make the corporation subject to, the
14provision.
15§ 314. Regulatory conditions and required notices and
16approvals.
17(a) Regulatory approvals.--If law of this Commonwealth other
18than this chapter requires notice to, or the approval of, a
19governmental agency or officer of this Commonwealth in
20connection with the participation under an organic law that is
21not part of this title by a domestic or foreign association in a
22transaction which is a form of transaction authorized by this
23chapter, the notice must be given or the approval obtained by
24the association before it may participate in any form of
25transaction under this chapter.
26(b) Certain regulated businesses.-–A domestic converted
27association, domestic domesticated entity, domestic new
28association, domestic resulting association or domestic
29surviving association may not acquire as a result of a
30transaction under this chapter the power to engage in the
1business of banking, insurance or acting as a trust company
2unless an association of that type is authorized to have and
3exercise that power under the law of this Commonwealth.
4(c) Charitable assets.--Property held for a charitable
5purpose under the law of this Commonwealth by a domestic or
6foreign association immediately before a transaction under this
7chapter becomes effective may not, as a result of the
8transaction, be diverted from the objects for which it was
9donated, granted, devised or otherwise transferred unless, to
10the extent required by or pursuant to the law of this
11Commonwealth concerning cy pres or other law dealing with
12nondiversion of charitable assets, the domestic or foreign
13association obtains an appropriate order of a court of competent
14jurisdiction specifying the disposition of the property.
15(d) Preservation of transfers.--A bequest, devise, gift,
16grant or promise contained in a will or other instrument of
17donation, subscription or conveyance that is made to a merging
18association that is not the surviving association and that takes
19effect or remains payable after the merger inures to the
20surviving association. A trust obligation that would govern
21property if transferred to a merging association that is not the
22surviving association applies to property that is transferred to
23the surviving association.
24(e) Cross reference.--See section 318 (relating to excluded
25entities and transactions).
26§ 315. Nature of transactions.
27(a) De facto transaction doctrine abolished.--The doctrine
28of de facto mergers, consolidations and other fundamental
29transactions is abolished and the rules laid down by Bloch v.
30Baldwin Locomotive Works, 75 Pa. D. & C. 24 (Pa.C.P. 1950), and
1Marks v. The Autocar Co., 153 F.Supp. 768 (E.D. Pa. 1954), and
2similar cases are abrogated. A transaction to which a domestic
3business corporation is a party that in form satisfies the
4requirements of this chapter and Part II, Subpart B (relating to
5business corporations) may be challenged by reason of its
6substance only to the extent permitted by section 1105 (relating
7to restriction on equitable relief).
8(b) Nonexclusivity.--The fact that a sale or conversion of
9the interests in or assets of an association or a transaction
10under a particular subchapter produces a result that could be
11accomplished in any other manner permitted by a different
12subchapter or other law shall not be a basis for
13recharacterizing the sale, conversion or transaction as a
14different form of sale, conversion or transaction under any
15other subchapter or other law.
16§ 316. Contents of plan.
17(a) Omission of certain provisions.--A plan as delivered to
18the department for filing under any provision of this chapter in
19lieu of a statement of merger, statement of interest exchange,
20statement of conversion, statement of division or statement of
21domestication may omit all provisions of the plan except
22provisions, if any, that:
23(1) are intended to amend or constitute the operative
24provisions of the public organic record of a domestic
25association as in effect subsequent to the effectiveness of
26the plan;
27(2) are required by this chapter in the statement in
28lieu of which the plan is being delivered to the department
29for filing; or
30(3) allocate or specify the respective property and
1liabilities of the resulting associations, in the case of a
2plan of division.
3(b) Availability of full plan.--If any of the provisions of
4a plan are omitted from the plan as delivered to the department
5as permitted under subsection (a), the plan must state that the
6full text of the plan is on file at the principal office of the
7surviving, acquiring, converted, new or resulting association or
8domesticated entity and the address thereof. An association that
9takes advantage of this section shall furnish a copy of the full
10text of the plan, on request and without cost, to any interest
11holder of any domestic or foreign association that was a party
12to the plan.
13(c) Reference to external facts.--A plan may refer to facts
14ascertainable outside of the plan if the manner in which the
15facts will operate on the plan is specified in the plan. The
16facts may include the occurrence of an event or a determination
17or action by a person, whether or not the event, determination
18or action is within the control of a party to the transaction.
19§ 317. Contractual dissenters rights in entity transactions.
20(a) General rule.--An interest holder of a domestic entity
21other than a nonprofit corporation or unincorporated nonprofit
22association shall be entitled to contractual dissenters rights
23in connection with a transaction under this chapter, even though
24the interest holder would not otherwise be entitled to
25dissenters rights under this title to the extent provided:
26(1) in the entity's organic rules; or
27(2) in the plan.
28(b) Procedures for contractual dissenters rights.--If an
29interest holder is entitled to contractual dissenters rights
30pursuant to subsection (a), Subchapter D of Chapter 15 (relating
1to dissenters rights) applies to the extent practicable except
2as otherwise provided in the organic rules of the domestic
3entity or the plan.
4(c) Cross references.--See sections 329 (relating to special
5treatment of interest holders) and 1571(c) (relating to
6application and effect of subchapter).
7§ 318. Excluded entities and transactions.
8(a) Excluded entities.--The following entities may not
9participate in a transaction under this chapter:
10(1) A cooperative corporation subject to Chapter 73
11(relating to electric cooperative corporations).
12(2) A cooperative corporation subject to Chapter 75
13(relating to cooperative agricultural associations).
14(3) A beneficial, benevolent, fraternal or fraternal
15benefit society:
16(i) having a lodge system and a representative form
17of government; or
18(ii) transacting any type of insurance.
19(b) Excluded transactions involving certain nonprofit
20corporations.--The following apply to nonprofit corporations:
21(1) Except as provided in paragraph (2), this chapter
22may not be used to accomplish a transaction that has the
23effect of converting a domestic nonprofit corporation that is
24subject to the supervision of the Department of Banking and
25Securities, the Insurance Department or the Pennsylvania
26Public Utility Commission to a different type of entity.
27(2) Paragraph (1) does not apply to a health maintenance
28organization.
29(c) Cross references.--See sections 103 (relating to
30subordination of title to regulatory laws) and 314 (relating to
1regulatory conditions and required notices and approvals).
2§ 319. Party to plan or transaction.
3An association that approves a plan in its capacity as an
4interest holder or creditor of a domestic or foreign association
5that is a party to the transaction under the plan, or that
6furnishes all or a part of the consideration contemplated by a
7plan, does not thereby become a party to the plan or the
8transaction under the plan for purposes of this chapter.
9§ 320. Submission of matters to interest holders.
10(a) General rule.--A domestic association may agree, in
11record form, to submit a plan to its interest holders whether or
12not the governors determine, at any time after approving the
13matter, that the matter is no longer advisable and recommend
14that the interest holders reject or vote against it, regardless
15of whether the governors change their recommendation. If an
16association so agrees to submit a matter to its interest
17holders, the matter is deemed to have been validly adopted by
18the association when it has been approved by the interest
19holders.
20(b) Cross references.--See sections 321(c) (relating to
21approval by business corporation) and 325(c)(2) (relating to
22approval by limited liability company).
23SUBCHAPTER B
24APPROVAL OF ENTITY TRANSACTIONS
25Sec.
26321. Approval by business corporation.
27322. Approval by nonprofit corporation.
28323. Approval by general partnership.
29324. Approval by limited partnership.
30325. Approval by limited liability company.
1326. Approval by professional association.
2327. Approval by business trust.
3328. Approval by unincorporated nonprofit association.
4329. Special treatment of interest holders.
5330. Alternative means of approval of transactions.
6§ 321. Approval by business corporation.
7(a) Proposal of plan.--Except where the approval of the
8board of directors is unnecessary pursuant to section 330
9(relating to alternative means of approval of transactions), a
10plan shall be proposed in the case of a domestic business
11corporation by the adoption by the board of directors of a
12resolution approving the plan. Except where the approval of the
13shareholders is unnecessary under this chapter, the board of
14directors shall direct that the plan be submitted to a vote of
15the shareholders entitled to vote thereon at a regular or
16special meeting of the shareholders.
17(b) Notice of meeting of shareholders.--Notice in record
18form of the meeting of shareholders that will act on the
19proposed plan must be given to each shareholder of record,
20whether or not entitled to vote thereon, of each domestic
21business corporation that is a party to the transaction under
22the plan. There shall be included in or enclosed with the notice
23a copy of the proposed plan or a summary thereof and any notice
24required by section 329 (relating to special treatment of
25interest holders) or 1574 (relating to notice of intention to
26dissent). The notice must state that a copy of the organic rules
27of the surviving, acquired, converted, new or resulting
28association or domesticated entity as they will be in effect
29immediately following the transaction will be furnished to any
30shareholder of the corporation giving the notice on request and
1without cost.
2(c) Shareholder vote required.--Except as provided in
3section 1757 (relating to action by shareholders) or subsection
4(d), a plan shall be adopted by a domestic business corporation
5that is a party to the transaction under the plan upon receiving
6the affirmative vote of a majority of the votes cast by all
7shareholders entitled to vote on the plan and, if any class or
8series of shares is entitled to vote thereon as a class, the
9affirmative vote of a majority of the votes cast in each class
10vote. The holders of any class or series of shares of a domestic
11business corporation that is a party to a transaction under a
12plan that would effect any change in the articles of the
13corporation shall be entitled to vote as a class on the plan if
14they would have been entitled to a class vote under the
15provisions of section 1914 (relating to adoption of amendments)
16had the change been accomplished under Subchapter B of Chapter
1719 (relating to amendment of articles). Except as provided in
18section 330, a proposed plan shall not be deemed to have been
19adopted by a domestic business corporation unless it has also
20been approved by the board of directors, regardless of the fact
21that the board has directed or suffered the submission of the
22plan to the shareholders for action.
23(d) Adoption of plan of merger without shareholder vote.--
24(1) Unless otherwise required by the organic rules, a
25plan of merger shall not require the approval of the
26shareholders of a domestic business corporation that is a
27merging association if:
28(i) whether or not the corporation is the surviving
29association:
30(A) the surviving association is a domestic
1business corporation and its articles are identical
2to the articles of the corporation for which
3shareholder approval is not required, except for
4changes that could be made without shareholder
5approval pursuant to section 1914(c);
6(B) each share of the corporation outstanding
7immediately prior to the effectiveness of the merger
8is to continue as or be converted into, except as may
9be otherwise agreed by the holder thereof, an
10identical share of the surviving association; and
11(C) the plan provides that the shareholders of
12the corporation are to hold in the aggregate shares
13of the surviving association to be outstanding
14immediately after the effectiveness of the merger
15entitled to cast at least a majority of the votes
16entitled to be cast generally for the election of
17directors;
18(ii) immediately prior to the adoption of the plan
19and at all times thereafter prior to the effectiveness of
20the merger, another association owns directly or
21indirectly 80% or more of the outstanding shares of each
22class of the corporation; or
23(iii) no shares of the corporation have been issued
24prior to the adoption of the plan by the board of
25directors pursuant to subsection (a).
26(2) If a merger is effected pursuant to paragraph (1)(i)
27or (iii), the plan shall be deemed adopted by the constituent
28corporation when it has been adopted by the board of
29directors pursuant to subsection (a).
30(3) If a merger of a subsidiary corporation is effected
1pursuant to paragraph (1)(ii), the plan shall be deemed
2adopted by the subsidiary corporation when it has been
3adopted by the governors of the parent association and
4neither approval of the plan by the board of directors of the
5subsidiary corporation nor signing of the statement of merger
6by the subsidiary corporation shall be necessary.
7(4) Unless otherwise required by the organic rules, a
8plan of merger providing for the merger of a domestic
9business corporation with or into a single indirect wholly
10owned subsidiary (referred to in this paragraph as the
11"subsidiary corporation") of the constituent corporation
12shall not require the approval of the shareholders of either
13the constituent corporation or the subsidiary corporation if
14all of the following provisions are satisfied.
15(i) A merger under this paragraph must satisfy the
16following conditions:
17(A) The constituent corporation and the
18subsidiary corporation are the only parties to the
19merger, other than a surviving association that is a
20corporation created in the merger.
21(B) Each share or fraction of a share of the
22capital stock of the constituent corporation
23outstanding immediately prior to the effectiveness of
24the merger is converted in the merger into a share or
25equal fraction of a share of capital stock of a
26holding company having the same designations, rights,
27powers and preferences and the qualifications,
28limitations and restrictions as the share of capital
29stock of the constituent corporation being converted
30in the merger.
1(C) The holding company and the surviving
2association are each domestic business corporations.
3(D) Immediately following the effectiveness of
4the merger, the articles of incorporation and bylaws
5of the holding company are identical to the articles
6of incorporation and bylaws of the constituent
7corporation immediately before the effectiveness of
8the merger, except for changes that could be made
9without shareholder approval pursuant to section
101914(c).
11(E) Immediately following the effectiveness of
12the merger, the surviving association is a direct or
13indirect wholly owned subsidiary of the holding
14company.
15(F) The directors of the constituent corporation
16become or remain the directors of the holding company
17on the effectiveness of the merger.
18(G) The board of directors of the constituent
19corporation has made a good faith determination that
20the shareholders of the constituent corporation will
21not recognize gain or loss for United States Federal
22income tax purposes.
23(ii) If the holding company is a registered
24corporation, the shares of the holding company issued in
25connection with the merger shall be deemed to have been
26acquired at the time that the shares of the constituent
27corporation converted in the merger were acquired.
28(iii) As used in this paragraph only, the term
29"holding company" means a corporation that, from its
30incorporation until consummation of the merger governed
1by this paragraph, was at all times a direct wholly owned
2subsidiary of the constituent corporation and whose
3capital stock is issued in the merger.
4(e) Cross references.--See:
5Subchapter A of Chapter 17 (relating to notice and
6meetings generally).
7Section 2512 (relating to dissenters rights procedure).
8Section 2539 (relating to adoption of plan of merger by
9board of directors).
10Section 3304(b) (relating to election of benefit
11corporation status).
12Section 3305(b) (relating to termination of benefit
13corporation status).
14§ 322. Approval by nonprofit corporation.
15(a) Proposal of plan.--A plan shall be proposed in the case
16of a domestic nonprofit corporation as follows:
17(1) by the adoption by the board of directors or other
18body of a resolution approving the plan;
19(2) unless otherwise provided in the articles, by
20petition of members entitled to cast at least 10% of the
21votes that all members are entitled to cast thereon, setting
22forth the proposed plan, which petition shall be directed to
23the board of directors and filed with the secretary of the
24corporation; or
25(3) by such other method as may be provided in the
26bylaws.
27(b) Submission to members.--Except where the domestic
28nonprofit corporation has no members entitled to vote thereon,
29the board of directors or other body shall direct that the plan
30be submitted to a vote of the members entitled to vote thereon
1at a regular or special meeting of the members.
2(c) Notice of meeting of members.--Notice in record form of
3the meeting of members that will act on the proposed plan shall
4be given to each member of record, whether or not entitled to
5vote thereon, of each domestic nonprofit corporation that is a
6party to the transaction under the plan. A copy of the proposed
7plan or a summary thereof shall be included in or enclosed with
8the notice. The notice shall state that a copy of the organic
9rules of the surviving, acquired, converted, new or resulting
10association or domesticated entity as they will be in effect
11immediately following the transaction will be furnished to any
12member of the corporation giving the notice on request and
13without cost.
14(d) Member vote required.--Except as provided in section
155757 (relating to action by members), a plan shall be adopted
16upon receiving the affirmative vote of at least a majority of
17the votes that all members present are entitled to cast thereon
18of each domestic nonprofit corporation that is a party to the
19transaction under the plan. If any class of members is entitled
20to vote on the plan as a class, the plan must be adopted by the
21affirmative vote of at least a majority of the votes that all
22members present of such class are entitled to cast thereon.
23(e) Adoption in absence of voting members.--If a domestic
24nonprofit corporation has no members entitled to vote thereon, a
25plan shall be deemed adopted by the corporation when it has been
26adopted by the board of directors or other body pursuant to
27subsection (a).
28(f) Cross references.--See Subchapter A of Chapter 57
29(relating to notice and meetings generally) and section 3304(b)
30(relating to election of benefit corporation status).
1§ 323. Approval by general partnership.
2(a) General rule.--A plan shall be approved in the case of a
3domestic general partnership as follows:
4(1) in the manner provided in its organic rules for the
5type of plan involved;
6(2) if its organic rules do not provide for approval of
7the type of plan involved, in the manner provided in its
8organic rules for approval of a plan of merger; or
9(3) if its organic rules do not provide for approval of
10the type of plan involved or a plan of merger, the plan shall
11be approved by all of the partners.
12(b) Cross reference.--See section 3304(b) (relating to
13election of benefit corporation status).
14§ 324. Approval by limited partnership.
15(a) Proposal of plan.--A plan shall be proposed in the case
16of a domestic limited partnership by the adoption by a unanimous
17vote of the general partners of a resolution approving the plan.
18Except where the approval of the limited partners is unnecessary
19under this chapter or the organic rules, the general partners
20shall submit the plan to a vote of the limited partners entitled
21to vote thereon at a regular or special meeting of the limited
22partners.
23(b) Notice of meeting of limited partners.--Notwithstanding
24any other provision of the organic rules, notice in record form
25of the meeting of limited partners called for the purpose of
26considering the proposed plan shall be given to each limited
27partner, whether or not entitled to vote thereon, of each
28domestic limited partnership that is a party to the transaction
29under the plan. A copy of the proposed plan or a summary thereof
30shall be included in or enclosed with the notice. The notice
1shall state that a copy of the organic rules of the surviving,
2acquired, converted, new or resulting association or
3domesticated entity as they will be in effect immediately
4following the transaction will be furnished to any limited
5partner of the limited partnership giving the notice on request
6and without cost.
7(c) Required vote by limited partners.--The plan shall be
8adopted upon receiving a majority of the votes cast by all
9limited partners, if any, entitled to vote thereon of each
10domestic limited partnership that is a party to the proposed
11transaction under the plan and, if any class of limited partners
12is entitled to vote thereon as a class, a majority of the votes
13cast in each class vote. A proposed plan may not be deemed to
14have been adopted by the limited partnership unless it has also
15been approved by the general partners, regardless of the fact
16that the general partners have directed or suffered the
17submission of the plan to the limited partners for action.
18(d) Merger by action of general partners only.--Except as
19provided in the organic rules, a plan of merger shall not
20require the approval of the limited partners of a domestic
21limited partnership that is a merging association and shall be
22deemed adopted by the limited partnership when it has been
23adopted by the general partners pursuant to subsection (a) if:
24(1) whether or not the limited partnership is the
25surviving association, the surviving association is a
26domestic limited partnership and its organic rules are
27identical to the organic rules of the merging limited
28partnership, except for changes that could be made without
29action by the limited partners; and
30(2) each partnership interest outstanding immediately
1before the effectiveness of the merger is to continue as or
2to be converted into, except as may be otherwise agreed by
3the holder thereof, an identical partnership interest in the
4surviving limited partnership after the effectiveness of the
5merger.
6(e) Cross reference.--See section 3304(b) (relating to
7election of benefit corporation status).
8§ 325. Approval by limited liability company.
9(a) Proposal of plan in manager-managed company.--Except as
10provided in the organic rules or where the approval of the
11managers is unnecessary under section 330 (relating to
12alternative means of approval of transactions), a plan shall be
13proposed, in the case of a manager-managed, domestic limited
14liability company, by the adoption by the managers of a
15resolution approving the plan. Except where the approval of the
16members of a manager-managed, domestic limited liability company
17is unnecessary under this chapter or the organic rules, the plan
18shall be submitted to a vote of the members entitled to vote
19thereon at a regular or special meeting of the members.
20(b) Notice of meeting of members.--Except as provided in the
21organic rules:
22(1) Notice in record form of the meeting of members of a
23domestic limited liability company that will act on the
24proposed plan shall be given to each member of record,
25whether or not entitled to vote thereon, of each domestic
26limited liability company that is a party to the transaction
27under the plan.
28(2) There shall be included in or enclosed with the
29notice a copy of the proposed plan or a summary thereof.
30(3) The notice shall state that a copy of the organic
1rules of the surviving, acquired, converted, new or resulting
2association or domesticated entity as they will be in effect
3immediately following the transaction will be furnished to
4any member of the company giving the notice on request and
5without cost.
6(c) Adoption of plan by members.--A plan:
7(1) Except as provided in the organic rules, shall be
8adopted upon receiving a majority of the votes cast by all
9members, if any, entitled to vote thereon of each of the
10domestic limited liability companies that is a party to the
11transaction under the plan and, if any class of members is
12entitled to vote thereon as a class, a majority of the votes
13cast in each class vote.
14(2) Except as provided in the organic rules or section
15330, shall not be deemed to have been adopted by a manager-
16managed company unless it has also been approved by the
17managers, regardless of the fact that the managers have
18directed or suffered the submission of the plan to the
19members for action.
20(d) Merger by action of managers only.--Unless otherwise
21required by a provision of the organic rules in record form, a
22plan of merger shall not require the approval of the members of
23a manager-managed, domestic limited liability company and shall
24be deemed adopted by the company when a resolution approving the
25plan has been adopted by the managers pursuant to subsection (a)
26if:
27(1) Whether the company is the surviving association:
28(i) the surviving association is a domestic limited
29liability company and its organic rules are identical to
30the organic rules of the limited liability company that
1is party to the merger, except for changes that could be
2made without action by the members; and
3(ii) each membership interest outstanding
4immediately prior to the effectiveness of the merger is
5to continue as or to be converted into, except as may be
6otherwise agreed by the holder thereof, an identical
7membership interest in the surviving association after
8the effectiveness of the merger.
9(2) The plan of merger provides for the merger of the
10company, referred to in this paragraph as the "constituent
11company," with or into a single indirect wholly owned
12subsidiary, referred to in this paragraph as the "subsidiary
13company," of the constituent company if all of the following
14provisions are satisfied:
15(i) The constituent company and the subsidiary
16company are the only parties to the merger, other than a
17surviving association that is created in the merger.
18(ii) Each interest of the constituent company
19outstanding immediately prior to the effectiveness of the
20merger is converted in the merger into an interest of a
21holding company having the same designations, rights,
22powers and preferences and the qualifications,
23limitations and restrictions as the interest of the
24constituent company being converted in the merger.
25(iii) The holding company and the surviving
26association are each domestic limited liability
27companies.
28(iv) Immediately following the effectiveness of the
29merger, the certificate of organization and operating
30agreement of the holding company are identical to the
1certificate of organization and operating agreement of
2the constituent company immediately before the
3effectiveness of the merger, except for changes that
4could be made without member approval pursuant to Chapter
589 (relating to limited liability companies).
6(v) Immediately following the effectiveness of the
7merger, the surviving association is a direct or indirect
8wholly owned subsidiary of the holding company.
9(vi) The managers of the constituent company become
10or remain the managers of the holding company on the
11effectiveness of the merger.
12(vii) The managers of the constituent company have
13made a good faith determination that the members of the
14constituent company will not recognize gain or loss for
15United States Federal income tax purposes.
16(viii) As used in this paragraph only, the term
17"holding company" means a limited liability company that,
18from its formation until consummation of the merger
19governed by this paragraph, was at all times a direct
20wholly owned subsidiary of the constituent company and
21interests in which are issued in the merger.
22(e) Cross reference.--See section 3304(b) (relating to
23election of benefit corporation status).
24§ 326. Approval by professional association.
25(a) General rule.--A plan shall be approved in the case of a
26domestic professional association by vote of a majority, or such
27higher percentage as may be provided in the organic rules, of
28the associates, voting according to their proportionate shares
29of ownership.
30(b) Cross reference.--See section 3304(b) (relating to
1election of benefit corporation status).
2§ 327. Approval by business trust.
3(a) General rule.--Except as provided in subsection (b), a
4plan shall be approved in the case of a domestic business trust
5as follows:
6(1) in the manner provided in its organic rules for the
7type of plan involved;
8(2) if its organic rules do not provide for approval of
9the type of plan involved, in the manner provided in its
10organic rules for approval of a plan of merger; or
11(3) if its organic rules do not provide for approval of
12the type of plan involved or a plan of merger, the plan
13shall be approved by all of the beneficial owners.
14(b) Adoption of plan of merger without beneficiary vote.--
15Unless otherwise required by the organic rules, a plan of merger
16providing for the merger of a domestic business trust, referred
17to in this paragraph as the "constituent trust," with or into a
18single indirect wholly owned subsidiary, referred to in this
19paragraph as the "subsidiary trust," of the constituent trust
20shall not require the approval of the beneficiaries of the
21constituent trust if all of the following provisions are
22satisfied:
23(1) The constituent trust and the subsidiary trust are
24the only parties to the merger, other than a surviving
25association created in the merger.
26(2) Each interest in the constituent trust outstanding
27immediately prior to the effectiveness of the merger is
28converted in the merger into an interest in the holding trust
29having the same designations, rights, powers and preferences
30and the qualifications, limitations and restrictions as the
1interests in the constituent trust being converted in the
2merger.
3(3) The holding trust and the surviving association are
4each domestic business trusts.
5(4) Immediately following the effectiveness of the
6merger, the instrument and organic rules of the holding trust
7are identical to the instrument and organic rules of the
8constituent trust immediately before the effectiveness of the
9merger, except for changes that could be made without
10beneficiary approval under Chapter 95 (relating to business
11trusts).
12(5) Immediately following the effectiveness of the
13merger, the surviving association is a direct or indirect
14wholly owned subsidiary of the holding trust.
15(6) The trustees of the constituent trust become or
16remain the trustees of the holding trust on the effectiveness
17of the merger.
18(7) The trustees of the constituent trust have made a
19good faith determination that the beneficiaries of the
20constituent trust will not recognize gain or loss for United
21States Federal income tax purposes.
22(8) As used in this subsection only, the term "holding
23trust" means a business trust that, from its formation until
24consummation of the merger governed by this subsection, was
25at all times a direct wholly owned subsidiary of the
26constituent trust and the interests in which are issued in
27the merger.
28(c) Cross reference.--See section 3304(b) (relating to
29election of benefit corporation status).
30§ 328. Approval by unincorporated nonprofit association.
1(a) General rule.--Except as provided in the governing
2principles, a plan shall be approved in the case of a domestic
3unincorporated nonprofit association by the affirmative vote of
4at least a majority of the votes cast at a meeting of the
5members.
6(b) Cross reference.--See section 3304(b) (relating to
7election of benefit corporation status).
8§ 329. Special treatment of interest holders.
9(a) General rule.--Except as otherwise restricted in the
10organic rules, a plan may contain a provision classifying the
11interest holders of a class or series of interests into one or
12more separate groups by reference to any facts or circumstances
13that are not manifestly unreasonable and providing mandatory
14treatment for interests of the class or series held by
15particular interest holders or groups of interest holders that
16differs materially from the treatment accorded other interest
17holders or groups of interest holders that hold interests of the
18same class or series, including a provision modifying or
19rescinding rights previously created under this section if
20either of the following applies:
21(1) The plan:
22(i) is approved by a majority of the votes cast by
23the holders of any class or series of interests any of
24the interests of which are so classified into groups,
25whether or not such class or series would otherwise be
26entitled to vote on the plan; and
27(ii) specifically enumerates the type and extent of
28the special treatment authorized.
29(2) Under all the facts and circumstances, a court of
30competent jurisdiction finds such special treatment is
1undertaken in good faith, after reasonable deliberation and
2is in the best interest of the association.
3(b) Statutory voting rights on special treatment.--Except as
4provided in subsection (d), if a plan contains a provision for
5special treatment, each group of holders of any outstanding
6interests of a class or series who are to receive the same
7special treatment under the plan shall be entitled to vote as a
8special class in respect to the plan regardless of any
9limitations stated in the organic rules on the voting rights of
10any class or series.
11(c) Determination of groups.--For purposes of applying
12subsections (a)(1) and (b), the determination of which interest
13holders are part of each group receiving special treatment shall
14be made as of the record date for interest holder action on the
15plan.
16(d) Dissenters rights on special treatment.--If a plan
17contains a provision for special treatment without requiring for
18the adoption of the plan the statutory class vote required under
19subsection (b), the holder of any outstanding interests the
20statutory class voting rights of which are so denied shall be
21entitled to assert dissenters rights with respect to those
22interests. A shareholder of a business corporation who wishes to
23assert dissenters rights shall comply with Subchapter D of
24Chapter 15 (relating to dissenters rights). An interest holder
25in any other type of domestic entity shall comply with
26Subchapter D of Chapter 15 to the extent practicable.
27(e) Notice to interest holders.--Any notice to interest
28holders of a meeting called to act on a plan that provides for
29special treatment shall state that the plan provides for special
30treatment. The notice shall identify the interest holders
1receiving special treatment unless the notice is accompanied by
2either a summary of the plan that includes that information or
3the full text of the plan.
4(f) Exceptions.--This section shall not apply to any of the
5following:
6(1) A provision of a plan that offers to all holders of
7interests of a class or series the same option to elect
8certain treatment.
9(2) A plan involving any type of domestic entity that
10contains an express provision that this section does not
11apply or that fails to contain an express provision that this
12section shall apply.
13(3) A provision of a plan that treats all of the holders
14of a particular class or series of interests of any type of
15domestic entity differently from the holders of another class
16or series. A provision of a plan that treats the holders of a
17class or series of shares of a domestic business corporation
18differently from the holders of another class or series of
19shares shall not constitute a violation of section 1521(d)
20(relating to authorized shares).
21§ 330. Alternative means of approval of transactions.
22(a) General rule.--Except as provided in subsection (b) or
23the organic rules of a domestic entity, approval of a
24transaction under this chapter by the unanimous vote or consent
25of its interest holders satisfies the requirements of this
26chapter for approval of the transaction.
27(b) Exception.--Subsection (a) shall not apply to a
28nonprofit corporation.
29SUBCHAPTER C
30MERGER
1Sec.
2331. Merger authorized.
3332. Plan of merger.
4333. Approval of merger.
5334. Amendment or abandonment of plan of merger.
6335. Statement of merger; effectiveness.
7336. Effect of merger.
8§ 331. Merger authorized.
9(a) General rule.--Except as provided in section 318
10(relating to excluded entities and transactions) or this
11section, by complying with this chapter:
12(1) One or more domestic entities may merge with one or
13more domestic entities or foreign associations into a
14surviving association.
15(2) Two or more foreign associations may merge into a
16surviving association that is a domestic entity.
17(3) A domestic banking institution may be a merging
18association or surviving association in a merger with one or
19more domestic or foreign associations if the surviving
20association or at least one of the merging associations is a
21domestic entity.
22(b) Foreign law authorization required.--By complying with
23the applicable provisions of this subchapter, a foreign
24association may be a party to a merger under this subchapter or
25may be the surviving association in such a merger if the merger
26is authorized by the law of the jurisdiction of formation of the
27foreign association.
28(c) Banking institutions.--Subsection (a)(3) controls over
29any inconsistent provision of the organic law of a domestic
30banking institution that is a merging association.
1(d) Exception.--A health maintenance organization may be a
2merging association only if the surviving association is a
3health maintenance organization.
4(e) Cross reference.--See section 314 (relating to
5regulatory conditions and required notices and approvals).
6§ 332. Plan of merger.
7(a) General rule.--A domestic entity may become a party to a
8merger by approving a plan of merger. The plan shall be in
9record form and contain all of the following:
10(1) As to each merging association, its name,
11jurisdiction of formation and type.
12(2) If the surviving association is to be created in the
13merger, a statement to that effect and the association's
14name, jurisdiction of formation and type.
15(3) The manner, if any, of:
16(i) converting some or all of the interests in a
17merging association into interests, securities,
18obligations, money, other property, rights to acquire
19interests or securities, or any combination of the
20foregoing; or
21(ii) canceling some or all of the interests in a
22merging association.
23(4) If the surviving association exists before the
24merger, any proposed amendments to:
25(i) its public organic record, if any; or
26(ii) its private organic rules that are or are
27proposed to be in record form.
28(5) If the surviving association is to be created in the
29merger:
30(i) its proposed public organic record, if any; and
1(ii) the full text of its private organic rules that
2are proposed to be in record form.
3(6) Provisions, if any, providing special treatment of
4interests in a merging association held by any interest
5holder or group of interest holders as authorized by, and
6subject to, section 329 (relating to special treatment of
7interest holders).
8(7) The other terms and conditions of the merger.
9(8) Any other provision required by:
10(i) the law of this Commonwealth;
11(ii) the law of the jurisdiction of formation of a
12foreign merging or surviving association; or
13(iii) the organic rules of a merging association.
14(b) Optional contents.--In addition to the requirements of
15subsection (a), a plan of merger may contain any other provision
16not prohibited by law.
17(c) Cross reference.--See section 316 (relating to contents
18of plan).
19§ 333. Approval of merger.
20(a) Approval by domestic entities.--A plan of merger shall
21not be effective unless it has been approved in both of the
22following ways:
23(1) The plan is approved by a domestic entity that is a
24merging association in accordance with the applicable
25provisions of Subchapter B (relating to approval of entity
26transactions).
27(2) The plan is approved in record form by each interest
28holder, if any, of a domestic entity that is a merging
29association that will have interest holder liability for
30debts, obligations and other liabilities that arise after the
1merger becomes effective, unless, as to an interest holder
2that does not approve the plan, both of the following apply:
3(i) The organic rules of the domestic entity provide
4in record form for the approval of a merger in which some
5or all of its interest holders become subject to interest
6holder liability by the vote or consent of fewer than all
7the interest holders.
8(ii) The interest holder consented in record form to
9or voted for that provision of the organic rules or
10became an interest holder after the adoption of that
11provision.
12(b) Approval by foreign associations.--A merger under this
13subchapter in which a foreign association is a merging
14association is not effective unless the merger is approved by
15the foreign association in accordance with the law of its
16jurisdiction of formation.
17(c) Approval by domestic banking institutions.--A merger
18under this subchapter in which a domestic banking institution
19that is not a domestic entity is a merging association is not
20effective unless the merger is approved by the domestic banking
21institution in accordance with the requirements in its organic
22law and organic rules for approval of a merger.
23(d) Dissenters rights.--
24(1) Except as provided in paragraph (2), if a
25shareholder of a domestic business corporation that is to be
26a merging association objects to the plan of merger and
27complies with Subchapter D of Chapter 15 (relating to
28dissenters rights), the shareholder shall be entitled to
29dissenters rights to the extent provided in that subchapter.
30(2) Except as provided under section 317 (relating to
1contractual dissenters rights in entity transactions),
2dissenters rights shall not be available to shareholders of a
3domestic business corporation that is a merging association
4in a merger described in section 321(d)(1)(i) or (4)
5(relating to approval by business corporation).
6(3) If a shareholder of a domestic banking institution
7that is to be a merging association objects to the plan of
8merger and complies with section 1222 of the act of November
930, 1965 (P.L.847, No.356), known as the Banking Code of
101965, the shareholder shall be entitled to the rights
11provided in that section.
12(4) See section 329 (relating to special treatment of
13interest holders).
14§ 334. Amendment or abandonment of plan of merger.
15(a) General rule.--A plan of merger may be amended or
16abandoned only with the consent of each party to the plan,
17except as otherwise provided in the plan.
18(b) Approval of amendment.--A domestic entity that is a
19merging association may approve an amendment of a plan of merger
20in one of the following ways:
21(1) In the same manner as the plan was approved, if the
22plan does not provide for the manner in which it may be
23amended.
24(2) By its governors or interest holders in the manner
25provided in the plan, but an interest holder that was
26entitled to vote on or consent to approval of the plan is
27entitled to vote on or consent to any amendment of the plan
28that will change any of the following:
29(i) The amount or kind of interests, securities,
30obligations, money, other property, rights to acquire
1interests or securities, or any combination of the
2foregoing, to be received by the interest holders of any
3party to the plan.
4(ii) The public organic record, if any, or private
5organic rules of the surviving association that will be
6in effect immediately after the merger becomes effective,
7except for changes that do not require approval of the
8interest holders of the surviving association under its
9organic law or organic rules.
10(iii) Any other terms or conditions of the plan, if
11the change would:
12(A) increase the interest holder liability to
13which the interest holder will be subject; or
14(B) otherwise adversely affect the interest
15holder in any material respect.
16(c) Approval of abandonment.--After a plan of merger has
17been approved by a domestic entity that is a merging association
18and before a statement of merger becomes effective, the plan may
19be abandoned as provided in the plan. Unless prohibited by the
20plan, a domestic entity that is a merging association may
21abandon the plan in the same manner as the plan was approved.
22(d) Statement of abandonment.--If a plan of merger is
23abandoned after a statement of merger has been delivered to the
24department for filing and before the statement becomes
25effective, a statement of abandonment, signed by a party to the
26plan, must be delivered to the department for filing before the
27statement of merger becomes effective. The statement of
28abandonment shall take effect on filing, and the merger shall be
29abandoned and shall not become effective. The statement of
30abandonment shall contain all of the following:
1(1) The name of each party to the plan of merger.
2(2) The date on which the statement of merger was filed
3by the department.
4(3) A statement that the merger has been abandoned in
5accordance with this section.
6(e) Cross references.--See sections 134 (relating to
7docketing statement) and 135 (relating to requirements to be met
8by filed documents).
9§ 335. Statement of merger; effectiveness.
10(a) General rule.--A statement of merger shall be signed by
11each merging association and delivered to the department for
12filing along with the certificates, if any, required by section
13139 (relating to tax clearance of certain fundamental
14transactions).
15(b) Contents.--A statement of merger shall contain all of
16the following:
17(1) With respect to each merging association that is not
18the surviving association:
19(i) its name;
20(ii) its jurisdiction of formation;
21(iii) its type;
22(iv) if it is a domestic filing association,
23domestic limited liability partnership or registered
24foreign association, the address of its registered
25office, including street and number, if any, in this
26Commonwealth, subject to section 109 (relating to name of
27commercial registered office provider in lieu of
28registered address);
29(v) if it is a domestic association that is not a
30domestic filing association or limited liability
1partnership, the address, including street and number, if
2any, of its principal office; and
3(vi) if it is a nonregistered foreign association,
4the address, including street and number, if any, of:
5(A) its registered or similar office, if any,
6required to be maintained by the law of its
7jurisdiction of formation; or
8(B) if it is not required to maintain a
9registered or similar office, its principal office.
10(2) With respect to the surviving association:
11(i) its name;
12(ii) its jurisdiction of formation;
13(iii) its type;
14(iv) if it is a domestic filing association,
15domestic limited liability partnership or registered
16foreign association, the address of its registered
17office, including street and number, if any, in this
18Commonwealth, subject to section 109;
19(v) if it is a domestic association that is not a
20domestic filing association or limited liability
21partnership, the address, including street and number, if
22any, of its principal office; and
23(vi) if it is a nonregistered foreign association,
24the address, including street and number, if any, of:
25(A) its registered or similar office, if any,
26required to be maintained by the law of its
27jurisdiction of formation; or
28(B) if it is not required to maintain a
29registered or similar office, its principal office.
30(3) If the statement of merger is not to be effective on
1filing, the later date or date and time on which it will
2become effective.
3(4) A statement that the merger was approved in the
4following ways as applicable:
5(i) By a domestic entity that is a merging
6association, in accordance with this chapter.
7(ii) By a foreign merging association, in accordance
8with the law of its jurisdiction of formation.
9(iii) By a domestic merging association that is not
10a domestic entity, in the same manner required by its
11organic law for approving a merger that requires the
12approval of its interest holders.
13(5) If the surviving association exists before the
14merger and is a domestic filing entity, any amendment to its
15public organic record approved as part of the plan of merger.
16(6) If the surviving association is created by the
17merger and is a domestic filing entity, its public organic
18record, as an attachment. The public organic record does not
19need to state the name or address of an incorporator of a
20corporation, organizer of a limited liability company or
21similar person with respect to any other type of entity.
22(7) If the surviving association is created by the
23merger and is a nonregistered foreign association, one of the
24following:
25(i) The street and mailing addresses of its
26registered agent and registered office in its
27jurisdiction of formation if it is a filing entity.
28(ii) The street and mailing address of its principal
29office if it is not a filing entity.
30(8) If the surviving association is created by the
1merger and is a domestic limited liability partnership or a
2domestic limited liability limited partnership that is not
3using the alternative procedure in section 8201(f) (relating
4to scope), its statement of registration, as an attachment.
5(9) If the surviving association is created by the
6merger and is a domestic electing partnership, its statement
7of election.
8(c) Other provisions.--In addition to the requirements of
9subsection (b), a statement of merger may contain any other
10provision not prohibited by law.
11(d) Domestic surviving association.--If the surviving
12association is a domestic entity, its public organic record, if
13any, shall satisfy the requirements of the law of this
14Commonwealth, except that the public organic record does not
15need to be signed and may omit any provision that is not
16required to be included in a restatement of the public organic
17record.
18(e) Filing of plan.--A plan of merger that is signed by all
19of the merging associations and meets all of the requirements of
20subsection (b) may be delivered to the department for filing
21instead of a statement of merger and on filing has the same
22effect. If a plan of merger is filed as provided in this
23subsection, references in this chapter to a statement of merger
24refer to the plan of merger filed under this subsection.
25(f) Effectiveness of statement of merger.--A statement of
26merger is effective as provided in section 136(c) (relating to
27processing of documents by Department of State).
28(g) Effectiveness of merger.--If the surviving association
29is a domestic association, the merger is effective when the
30statement of merger is effective. If the surviving association
1is a foreign association, the merger is effective on the later
2of:
3(1) the date and time provided by the organic law of the
4surviving association; or
5(2) when the statement of merger is effective.
6(h) Cross references.--See sections 134 (relating to
7docketing statement), 135 (relating to requirements to be met by
8filed documents) and 316 (relating to contents of plan).
9§ 336. Effect of merger.
10(a) General rule.--When a merger under this subchapter
11becomes effective, all of the following apply:
12(1) The surviving association continues or comes into
13existence.
14(2) Each merging association that is not the surviving
15association ceases to exist.
16(3) All property of each merging association vests in
17the surviving association without reversion or impairment,
18and the merger shall not constitute a transfer of any of that
19property.
20(4) All debts, obligations and other liabilities of each
21merging association are debts, obligations and other
22liabilities of the surviving association.
23(5) Except as otherwise provided by law or the plan of
24merger, all the rights, privileges, immunities, powers and
25purposes of each merging association vest in the surviving
26association.
27(6) If the surviving association exists before the
28merger, all of the following apply:
29(i) All of its property continues to be vested in it
30without transfer, reversion or impairment.
1(ii) It remains subject to all its debts,
2obligations and other liabilities.
3(iii) All its rights, privileges, immunities, powers
4and purposes continue to be vested in it.
5(iv) Its public organic record, if any, is amended
6to the extent provided in the statement of merger.
7(v) Its private organic rules that are to be in
8record form, if any, are amended to the extent provided
9in the plan of merger.
10(7) The name of the surviving association may be
11substituted for the name of any merging association that is a
12party to any pending action or proceeding.
13(8) If the surviving association is created by the
14merger, its private organic rules are effective and the
15following apply:
16(i) If it is a filing entity, its public organic
17record is effective.
18(ii) If it is a limited liability partnership or a
19limited liability limited partnership that is not using
20the alternative procedure under section 8201(f) (relating
21to scope), its statement of registration is effective.
22(iii) If it is an electing partnership, its
23statement of election is effective.
24(9) The interests in each merging association that are
25to be converted or canceled as provided in the plan of merger
26are converted or canceled, and the interest holders of those
27interests are entitled only to the rights provided to them
28under the plan and to any dissenters rights they have
29pursuant to section 317 (relating to contractual dissenters
30rights in entity transactions) or 333(d) (relating to
1approval of merger).
2(b) No dissolution rights.--Except as provided in the
3organic law or organic rules of a merging association, a merger
4under this subchapter does not give rise to any rights that an
5interest holder, governor or third party would have on a
6dissolution, liquidation or winding up of the merging
7association.
8(c) New interest holder liability.--When a merger under this
9subchapter becomes effective, a person that becomes subject to
10interest holder liability with respect to an association as a
11result of the merger has interest holder liability only to the
12extent provided by the organic law of that association and only
13for those debts, obligations and other liabilities that arise
14after the merger becomes effective.
15(d) Prior interest holder liability.--When a merger under
16this subchapter becomes effective, the interest holder liability
17of a person that ceases to hold an interest in a domestic entity
18that is a merging association with respect to which the person
19had interest holder liability shall be as follows:
20(1) The merger does not discharge any interest holder
21liability under the organic law of the domestic entity to the
22extent the interest holder liability arose before the merger
23became effective.
24(2) The person does not have interest holder liability
25under the organic law of the domestic entity for any debt,
26obligation or other liability that arises after the merger
27becomes effective.
28(3) The organic law of the domestic entity continues to
29apply to the release, collection or discharge of any interest
30holder liability preserved under paragraph (1) as if the
1merger had not occurred.
2(4) The person has whatever rights of contribution from
3any other person as are provided by law other than this
4chapter or the organic rules of the domestic entity with
5respect to any interest holder liability preserved under
6paragraph (1) as if the merger had not occurred.
7(e) Foreign surviving association.--When a merger under this
8subchapter becomes effective, a foreign association that is the
9surviving association may be served with process in this
10Commonwealth for the collection and enforcement of any debts,
11obligations or other liabilities of a domestic entity that is a
12merging association in accordance with applicable law.
13(f) Registration of foreign association.--When a merger
14under this subchapter becomes effective, the registration to do
15business in this Commonwealth of a registered foreign
16association that is a merging association and is not the
17surviving association is canceled.
18(g) Taxes.--Any taxes, interest, penalties and public
19accounts of the Commonwealth claimed against any of the merging
20associations that are settled, assessed or determined prior to
21or after the merger shall be the liability of the surviving
22association.
23SUBCHAPTER D
24INTEREST EXCHANGE
25Sec.
26341. Interest exchange authorized.
27342. Plan of interest exchange.
28343. Approval of interest exchange.
29344. Amendment or abandonment of plan of interest exchange.
30345. Statement of interest exchange; effectiveness.
1346. Effect of interest exchange.
2§ 341. Interest exchange authorized.
3(a) General rule.--Except as provided in section 318
4(relating to excluded entities and transactions) or this
5section, by complying with this subchapter:
6(1) A domestic or foreign association may acquire all of
7one or more classes or series of interests of a domestic
8entity in exchange for interests, securities, obligations,
9money, other property, rights to acquire interests or
10securities or any combination of the foregoing.
11(2) A domestic entity may acquire all of one or more
12classes or series of interests of a foreign association in
13exchange for interests, securities, obligations, money, other
14property, rights to acquire interests or securities or any
15combination of the foregoing.
16(b) Foreign associations.--By complying with the applicable
17provisions of this subchapter:
18(1) A foreign association may be the acquiring
19association in an interest exchange under this subchapter
20regardless of whether the law of its jurisdiction of
21formation authorizes an interest exchange.
22(2) A foreign association may be the acquired
23association in an interest exchange under this subchapter
24only if the interest exchange is authorized by the law of its
25jurisdiction of formation.
26(c) Protected agreements.--If a protected agreement of a
27domestic entity other than a business corporation contains a
28provision that applies to a merger of the entity but does not
29refer to an interest exchange, the provision shall apply to an
30interest exchange in which the domestic entity is the acquired
1association as if the interest exchange were a merger until the
2provision is amended after {The Legislative Reference Bureau
3shall insert here the effective date of this chapter}.
4(d) Excluded entities.--The following domestic entities
5shall not be the acquired association in an interest exchange:
6(1) a health maintenance organization;
7(2) a hospital plan corporation; or
8(3) a professional health service organization.
9(e) Cross reference.--See section 314 (relating to
10regulatory conditions and required notices and approvals).
11§ 342. Plan of interest exchange.
12(a) General rule.--A domestic entity may be the acquired
13association in an interest exchange under this chapter by
14approving a plan of interest exchange. The plan shall be in
15record form and contain all of the following:
16(1) The name and type of the acquired association.
17(2) The name, jurisdiction of formation and type of the
18acquiring association.
19(3) The manner of:
20(i) exchanging the interests in the acquired
21association to be acquired in the interest exchange into
22interests, securities, obligations, money, other
23property, rights to acquire interests or securities, or
24any combination of the foregoing; and
25(ii) canceling, if desired, some or all other
26interests in the acquired association.
27(4) Any proposed amendments to:
28(i) the public organic record, if any, of the
29acquired association; and
30(ii) the private organic rules of the acquired
1association that are or are proposed to be in record
2form.
3(5) Provisions, if any, providing special treatment of
4interests in the acquired association held by any interest
5holder or group of interest holders as authorized by, and
6subject to, section 329 (relating to special treatment of
7interest holders).
8(6) The other terms and conditions of the interest
9exchange.
10(7) Any other provision required by:
11(i) the law of this Commonwealth; or
12(ii) the organic rules of the acquired association.
13(b) Optional contents.--In addition to the requirements of
14subsection (a), a plan of interest exchange may contain any
15other provision not prohibited by law.
16(c) Cross reference.--See section 316(c) (relating to
17contents of plan).
18§ 343. Approval of interest exchange.
19(a) Approval by domestic entities.--A plan of interest
20exchange in which the acquired association is a domestic entity
21shall not be effective unless it has been approved in the
22following ways:
23(1) By the acquired domestic entity in accordance with
24the applicable provisions of Subchapter B (relating to
25approval of entity transactions).
26(2) In record form, by each interest holder of the
27acquired domestic entity that will have interest holder
28liability for debts, obligations and other liabilities that
29arise after the interest exchange becomes effective, unless,
30as to an interest holder that does not approve the plan, both
1of the following apply:
2(i) The organic rules of the entity provide in
3record form for the approval of an interest exchange or a
4merger in which some or all of its interest holders
5become subject to interest holder liability by the vote
6or consent of fewer than all the interest holders.
7(ii) The interest holder voted for or consented in
8record form to that provision of the organic rules or
9became an interest holder after the adoption of that
10provision.
11(3) Except as provided in the organic rules of the
12domestic entity, by the following class votes:
13(i) the holders of any class or series of interests
14of the acquired association to be exchanged or canceled
15shall be entitled to vote as a class on the plan; and
16(ii) the holders of any class or series of interests
17of the acquired association shall be entitled to vote as
18a class on the plan if the plan effects any change in the
19organic rules and those holders would have been entitled
20to vote as a class if the change had been made in any
21other manner.
22(b) Approval by foreign associations.--An interest exchange
23in which the acquired association is a foreign association is
24not effective unless it is approved by the foreign association
25in accordance with the law of its jurisdiction of formation.
26(c) Acquiring association.--Except as provided in its
27organic law or organic rules, the interest holders of the
28acquiring association are not required to approve the interest
29exchange.
30(d) Dissenters rights.--If a shareholder of a domestic
1business corporation that is to be the acquired association in
2an interest exchange objects to the plan of exchange and
3complies with Subchapter D of Chapter 15 (relating to dissenters
4rights), the shareholder shall be entitled to dissenters rights
5to the extent provided in that subchapter.
6(e) Cross references.--See sections 317 (relating to
7contractual dissenters rights in entity transactions) and 329(c)
8(relating to special treatment of interest holders).
9§ 344. Amendment or abandonment of plan of interest exchange.
10(a) General rule.--A plan of interest exchange may be
11amended or abandoned only with the consent of each party to the
12plan, except as otherwise provided in the plan.
13(b) Approval of amendment.--A domestic entity that is the
14acquired association may approve an amendment of a plan of
15interest exchange in one of the following ways:
16(1) In the same manner as the plan was approved, if the
17plan does not provide for the manner in which it may be
18amended.
19(2) By its governors or interest holders in the manner
20provided in the plan, but an interest holder that was
21entitled to vote on or consent to approval of the plan is
22entitled to vote on or consent to any amendment of the plan
23that will change any of the following:
24(i) The amount or kind of interests, securities,
25obligations, money, other property, rights to acquire
26interests or securities, or any combination of the
27foregoing, to be received by any of the interest holders
28of the entity under the plan.
29(ii) The public organic record, if any, or private
30organic rules of the entity that will be in effect
1immediately after the interest exchange becomes
2effective, except for changes that do not require
3approval of the interest holders of the entity under its
4organic law or organic rules.
5(iii) Any other terms or conditions of the plan, if
6the change would:
7(A) increase the interest holder liability to
8which the interest holder will be subject; or
9(B) otherwise adversely affect the interest
10holder in any material respect.
11(c) Approval of abandonment.--After a plan of interest
12exchange has been approved by a domestic entity that is the
13acquired entity and before a statement of interest exchange
14becomes effective, the plan may be abandoned as provided in the
15plan. Unless prohibited by the plan, a domestic entity that is
16the acquired association may abandon the plan in the same manner
17as the plan was approved.
18(d) Statement of abandonment.--If a plan of interest
19exchange is abandoned after a statement of interest exchange has
20been delivered to the department for filing and before the
21statement becomes effective, a statement of abandonment, signed
22by the acquired association, must be delivered to the department
23for filing before the time the statement of interest exchange
24becomes effective. The statement of abandonment shall take
25effect on filing, and the interest exchange shall be abandoned
26and shall not become effective. The statement of abandonment
27shall contain all of the following:
28(1) The name of the acquired association.
29(2) The date on which the statement of interest exchange
30was filed by the department.
1(3) A statement that the interest exchange has been
2abandoned in accordance with this section.
3(e) Cross references.--See sections 134 (relating to
4docketing statement) and 135 (relating to requirements to be met
5by filed documents).
6§ 345. Statement of interest exchange; effectiveness.
7(a) General rule.--If the acquired association is a domestic
8entity, a statement of interest exchange shall be signed by that
9entity and delivered to the department for filing.
10(b) Contents.--A statement of interest exchange shall
11contain all of the following:
12(1) With respect to the acquired association:
13(i) its name;
14(ii) its jurisdiction of formation;
15(iii) its type;
16(iv) if it is a domestic filing association or
17domestic limited liability partnership, the address of
18its registered office, including street and number, if
19any, in this Commonwealth, subject to section 109
20(relating to name of commercial registered office
21provider in lieu of registered address); and
22(v) if it is a domestic association that is not a
23domestic filing association or limited liability
24partnership, the address, including street and number, if
25any, of its principal office.
26(2) With respect to the acquiring association:
27(i) its name;
28(ii) its jurisdiction of formation;
29(iii) its type;
30(iv) if it is a domestic filing association,
1domestic limited liability partnership or registered
2foreign association, the address of its registered
3office, including street and number, if any, in this
4Commonwealth, subject to section 109;
5(v) if it is a domestic association that is not a
6domestic filing association or limited liability
7partnership, the address, including street and number, if
8any, of its principal office; and
9(vi) if it is a nonregistered foreign association,
10the address, including street and number, if any, of:
11(A) its registered or similar office, if any,
12required to be maintained by the law of its
13jurisdiction of formation; or
14(B) if it is not required to maintain a
15registered or similar office, its principal office.
16(3) If the statement of interest exchange is not to be
17effective on filing, the later date or date and time on which
18it will become effective.
19(4) A statement that the plan of interest exchange was
20approved by the acquired association in accordance with this
21chapter.
22(5) Any amendments to the public organic record of the
23acquired association approved as part of the plan of interest
24exchange.
25(c) Other provisions.--In addition to the requirements of
26subsection (b), a statement of interest exchange may contain any
27other provision not prohibited by law.
28(d) Filing of plan.--A plan of interest exchange that is
29signed by the domestic entity that is the acquired association
30and that meets all of the requirements of subsection (b) may be
1delivered to the department for filing instead of a statement of
2interest exchange and on filing shall have the same effect. If a
3plan of interest exchange is delivered to the department for
4filing as provided in this subsection, references in this
5chapter to a statement of interest exchange shall refer to the
6plan of interest exchange filed under this subsection.
7(e) Effectiveness.--An interest exchange in which the
8acquired association is a domestic entity is effective when the
9statement of interest exchange is effective as provided in
10section 136(c) (relating to processing of documents by
11Department of State).
12(f) Cross references.--See sections 134 (relating to
13docketing statement) and 135 (relating to requirements to be met
14by filed documents).
15§ 346. Effect of interest exchange.
16(a) General rule.--When an interest exchange in which the
17acquired association is a domestic entity becomes effective, all
18of the following apply:
19(1) Interests in the acquired association are exchanged
20or canceled as provided in the plan of exchange, and the
21interest holders of those interests are entitled only to the
22rights provided to them under the plan and to any dissenters
23rights they have pursuant to section 317 (relating to
24contractual dissenters rights in entity transactions) or
25343(d) (relating to approval of interest exchange).
26(2) The acquiring association becomes the interest
27holder of the interests in the acquired association stated in
28the plan of interest exchange to be acquired by the acquiring
29entity.
30(3) The public organic record, if any, of the acquired
1association is amended to the extent provided in the
2statement of interest exchange.
3(4) The private organic rules of the acquired
4association that are to be in record form, if any, are
5amended to the extent provided in the plan of interest
6exchange.
7(b) Absence of dissolution rights.--Except as provided in
8the organic rules of the acquired association, the interest
9exchange shall not give rise to any rights that an interest
10holder, governor or third party would have upon a dissolution,
11liquidation or winding up of the acquired association.
12(c) New interest holder liability.--When an interest
13exchange becomes effective, a person that becomes subject to
14interest holder liability with respect to an association as a
15result of the interest exchange has interest holder liability
16only to the extent provided by the organic law of the
17association and only for those debts, obligations and other
18liabilities that arise after the interest exchange becomes
19effective.
20(d) Prior interest holder liability.--When an interest
21exchange becomes effective, the interest holder liability of a
22person that ceases to hold an interest in a domestic acquired
23association with respect to which the person had interest holder
24liability is as follows:
25(1) The interest exchange does not discharge any
26interest holder liability under the organic law of the
27domestic acquired association to the extent the interest
28holder liability arose before the interest exchange became
29effective.
30(2) The person does not have interest holder liability
1under the organic law of the domestic acquired association
2for any debt, obligation or other liability that arises after
3the interest exchange becomes effective.
4(3) The organic law of the domestic acquired association
5continues to apply to the release, collection or discharge of
6any interest holder liability preserved under paragraph (1)
7as if the interest exchange had not occurred.
8(4) The person has whatever rights of contribution from
9any other person as are provided by law other than this title
10or the organic law or organic rules of the domestic acquired
11association with respect to any interest holder liability
12preserved under paragraph (1) as if the interest exchange had
13not occurred.
14SUBCHAPTER E
15CONVERSION
16Sec.
17351. Conversion authorized.
18352. Plan of conversion.
19353. Approval of conversion.
20354. Amendment or abandonment of plan of conversion.
21355. Statement of conversion; effectiveness.
22356. Effect of conversion.
23§ 351. Conversion authorized.
24(a) Domestic converting associations.--Except as provided in
25section 318 (relating to excluded entities and transactions) or
26this section, by complying with this chapter:
27(1) A domestic entity may become a domestic entity of a
28different type or a domestic banking institution.
29(2) A domestic banking institution may become a domestic
30association of a different type.
1(3) A domestic entity may become a foreign association
2of a different type, if the conversion is authorized by the
3law of the foreign jurisdiction.
4(b) Foreign converting associations.--By complying with the
5applicable provisions of this subchapter, a foreign association
6may become a domestic entity of a different type if the
7conversion is authorized by the law of the jurisdiction of
8formation of the foreign association.
9(c) Protected governance agreements.--If a protected
10governance agreement that is binding on a domestic entity
11immediately before the effectiveness of a transaction under this
12chapter contains a provision that applies to a merger of the
13entity but does not refer to a conversion, the provision shall
14apply to a conversion of the entity as if the conversion were a
15merger until the provision is amended after {the Legislative
16Reference Bureau shall insert here the effective date of this
17chapter}.
18(d) Exceptions.--This subchapter may not be used to
19accomplish a transaction that has the same effect as a
20transaction under any of the following provisions:
21(1) Section 7104 (relating to election of an existing
22business corporation to become a cooperative corporation).
23(2) Section 7105 (relating to termination of status as a
24cooperative corporation for profit).
25(3) Section 7106 (relating to election of an existing
26nonprofit corporation to become a cooperative corporation).
27(4) Section 7107 (relating to termination of nonprofit
28cooperative corporation status).
29(e) Cross reference.--See section 314 (relating to
30regulatory conditions and required notices and approvals).
1§ 352. Plan of conversion.
2(a) General rule.--A domestic entity or domestic banking
3institution may be a party to a conversion by approving a plan
4of conversion. The plan shall be in record form and contain all
5of the following:
6(1) The name and type of the converting association.
7(2) The name, jurisdiction of formation and type of
8converted association.
9(3) The manner of:
10(i) canceling, if desired, some, but less than all,
11of the interests in the converting association;
12(ii) converting at least some of the interests in
13the converting association into interests in the
14converted association; and
15(iii) converting the interests in the converting
16association not canceled under subparagraph (i) or
17converted under subparagraph (ii) into interests,
18securities, obligations, money or property, rights to
19acquire interests or securities or any combination of the
20foregoing.
21(4) The proposed public organic record of the converted
22association if it will be a filing entity.
23(5) The full text of the private organic rules of the
24converted association that are proposed to be in record form.
25(6) Provisions, if any, providing special treatment of
26interests in the converting association held by any interest
27holder or group of interest holders as authorized by and
28subject to section 329 (relating to special treatment of
29interest holders).
30(7) The other terms and conditions of the conversion.
1(8) Any other provision required by:
2(i) the law of this Commonwealth;
3(ii) the law of the jurisdiction of formation of the
4converted association if it is to be a foreign
5association; or
6(iii) the organic rules of the converting
7association.
8(b) Optional contents.--In addition to the requirements of
9subsection (a), a plan of conversion may contain any other
10provision not prohibited by law.
11(c) Terms of interests.--The ownership, voting and other
12rights of the interest holders in the converted association
13shall be substantially the same as they were in the converting
14association except:
15(1) as provided in the plan of conversion pursuant to
16section 329;
17(2) as provided in the express terms of the organic
18rules of the converted association that are in record form;
19or
20(3) to the extent a difference in those rights is
21required by a provision of the organic law of the converted
22association that cannot be varied in its organic rules.
23(d) Cross reference.--See section 316(c) (relating to
24contents of plan).
25§ 353. Approval of conversion.
26(a) Approval by domestic associations.--A plan of conversion
27in which the converting association is a domestic entity or
28domestic banking institution shall not be effective unless it
29has been approved in the following ways:
30(1) In the case of a domestic entity, in accordance with
1the applicable provisions of Subchapter B (relating to
2approval of entity transactions).
3(2) In the case of a domestic banking institution that
4is a corporation, by at least:
5(i) In the case of a mutual savings bank:
6(A) two-thirds of the trustees present at a
7meeting at which the plan is proposed; and
8(B) two-thirds of all the trustees at a
9subsequent meeting held upon not less than ten days'
10notice to all the trustees.
11(ii) In the case of any other institution:
12(A) a majority of the directors; and
13(B) the shareholders entitled to cast at least
14two-thirds of the votes which all shareholders are
15entitled to cast thereon, and, if any class of shares
16is entitled to vote thereon as a class, the holders
17of at least two-thirds of the outstanding shares of
18such class, at a meeting held upon not less than ten
19days' notice to all shareholders.
20(3) In record form, by each interest holder, if any, of
21the converting association that will have interest holder
22liability for debts, obligations and other liabilities that
23arise after the conversion becomes effective, unless, as to
24an interest holder that does not approve the plan, both of
25the following apply:
26(i) The organic rules of the converting association
27provide in record form for the approval of a conversion
28or a merger in which some or all of its interest holders
29become subject to interest holder liability by the vote
30or consent of fewer than all of the interest holders.
1(ii) The interest holder voted for or consented in
2record form to that provision of the organic rules or
3became an interest holder after the adoption of that
4provision.
5(b) Approval by foreign associations.--A conversion in which
6the converting association is a foreign association shall not be
7effective unless it is approved by the foreign association in
8accordance with the law of its jurisdiction of formation.
9(c) Dissenters rights.--The following apply with respect to
10the rights of an interest holder of the converting association:
11(1) A shareholder of a domestic business corporation
12that is to be a converting association shall be entitled to
13dissenters rights if:
14(i) the shareholder objects to the plan of
15conversion and complies with Subchapter D of Chapter 15
16(relating to dissenters rights); and
17(ii) the conversion involves a change in the rights
18of the shareholder pursuant to section 352(c)(1) or (2)
19(relating to plan of conversion).
20(2) A shareholder of a domestic banking institution that
21is to be a converting association shall be entitled to the
22rights provided in section 1222 of the act of November 30,
231965 (P.L.847, No.356), known as the Banking Code of 1965,
24if:
25(i) the shareholder objects to the plan of
26conversion and complies with section 1222 of the Banking
27Code of 1965; and
28(ii) the conversion involves a change in the rights
29of the shareholder pursuant to section 352(c)(1) or (2).
30(3) See sections 317 (relating to contractual dissenters
1rights in entity transactions) and 329 (relating to special
2treatment of interest holders).
3§ 354. Amendment or abandonment of plan of conversion.
4(a) Approval of amendment.--A plan of conversion in which
5the converting association is a domestic association may be
6amended in one of the following ways:
7(1) In the same manner as the plan was approved, if the
8plan does not provide for the manner in which it may be
9amended.
10(2) By its governors or interest holders in the manner
11provided in the plan, but an interest holder that was
12entitled to vote on or consent to approval of the plan is
13entitled to vote on or consent to any amendment of the plan
14that will change any of the following:
15(i) The amount or kind of interests, securities,
16obligations, money, other property, rights to acquire
17interests or securities, or any combination of the
18foregoing, to be received by any of the interest holders
19of the converting association under the plan.
20(ii) The public organic record, if any, or private
21organic rules of the converted association that will be
22in effect immediately after the conversion becomes
23effective, except for changes that do not require
24approval of the interest holders of the converted
25association under its organic law or organic rules.
26(iii) Any other terms or conditions of the plan, if
27the change would:
28(A) increase the interest holder liability to
29which the interest holder will be subject; or
30(B) otherwise adversely affect the interest
1holder in any material respect.
2(b) Approval of abandonment.--After a plan of conversion has
3been approved by a converting association that is a domestic
4association and before a statement of conversion becomes
5effective, the plan may be abandoned as provided in the plan.
6Unless prohibited by the plan, a domestic converting association
7may abandon the plan in the same manner as the plan was
8approved.
9(c) Statement of abandonment.--If a plan of conversion is
10abandoned after a statement of conversion has been delivered to
11the department for filing and before the statement of conversion
12becomes effective, a statement of abandonment, signed by the
13converting association, must be delivered to the department for
14filing before the statement of conversion becomes effective.
15The statement of abandonment shall take effect on filing, and
16the conversion shall be abandoned and shall not become
17effective. The statement of abandonment shall contain all of the
18following:
19(1) The name of the converting association.
20(2) The date on which the statement of conversion was
21delivered to the department for filing.
22(3) A statement that the conversion has been abandoned
23in accordance with this section.
24(d) Cross references.--See sections 134 (relating to
25docketing statement) and 135 (relating to requirements to be met
26by filed documents).
27§ 355. Statement of conversion; effectiveness.
28(a) General rule.--A statement of conversion shall be signed
29by the converting association and delivered to the department
30for filing along with the certificates, if any, required by
1section 139 (relating to tax clearance of certain fundamental
2transactions).
3(b) Contents.--A statement of conversion shall contain all
4of the following:
5(1) With respect to the converting association:
6(i) its name;
7(ii) its jurisdiction of formation;
8(iii) its type;
9(iv) the date on which it was first created,
10incorporated, formed or otherwise came into existence;
11(v) if it is a domestic filing association, the
12statute under which it was first created, incorporated,
13formed or otherwise came into existence;
14(vi) if it is a domestic filing association,
15domestic limited liability partnership or registered
16foreign association:
17(A) the address of its registered office,
18including street and number, if any, in this
19Commonwealth, subject to section 109 (relating to
20name of commercial registered office provider in lieu
21of registered address); or
22(B) if it is not required to maintain a
23registered office in this Commonwealth, the address,
24including street and number, if any, of its principal
25office;
26(vii) if it is a domestic association that is not a
27domestic filing association or limited liability
28partnership, the address, including street and number, if
29any, of its principal office; and
30(viii) if it is a nonregistered foreign association,
1the address, including street and number, if any, of:
2(A) its registered or similar office, if any,
3required to be maintained by the law of its
4jurisdiction of formation; or
5(B) if it is not required to maintain a
6registered or similar office, its principal office.
7(2) With respect to the converted association:
8(i) its name;
9(ii) its jurisdiction of formation;
10(iii) its type;
11(iv) if it is a domestic filing association,
12domestic limited liability partnership or registered
13foreign association:
14(A) the address of its registered office,
15including street and number, if any, in this
16Commonwealth, subject to section 109; or
17(B) if it is not required to maintain a
18registered office in this Commonwealth, the address,
19including street and number, if any, of its principal
20office;
21(v) if it is a domestic association that is not a
22domestic filing association or limited liability
23partnership, the address, including street and number, if
24any, of its principal office; and
25(vi) if it is a nonregistered foreign association,
26the address, including street and number, if any, of:
27(A) its registered or similar office, if any,
28required to be maintained by the law of its
29jurisdiction of formation; or
30(B) if it is not required to maintain a
1registered or similar office, its principal office.
2(3) If the statement of conversion is not to be
3effective on filing, the later date or date and time on which
4it will become effective.
5(4) If the converting association is a domestic
6association, a statement that the plan of conversion was
7approved in accordance with this chapter or, if the
8converting association is a foreign association, a statement
9that the conversion was approved by the foreign association
10in accordance with the law of its jurisdiction of formation.
11(5) If the converted association is a domestic filing
12entity or domestic banking institution, its public organic
13record as an attachment. The public organic record does not
14need to state the name or address of an incorporator of a
15corporation, organizer of a limited liability company or
16similar person with respect to any other type of entity.
17(6) If the converted association is a domestic limited
18liability partnership or a domestic limited liability limited
19partnership that is not using the alternative procedure in
20section 8201(f) (relating to scope), its statement of
21registration as an attachment.
22(7) If the converted association is a domestic electing
23partnership, its statement of election as an attachment.
24(8) If the converted association is a nonregistered
25foreign association, one of the following:
26(i) The street and mailing addresses of its
27registered agent and registered office in its
28jurisdiction of formation if it is a filing entity.
29(ii) The street and mailing address of its principal
30office if it is not a filing entity.
1(c) Other provisions.--In addition to the requirements of
2subsection (b), a statement of conversion may contain any other
3provision not prohibited by law.
4(d) Domestic converted association.--If the converted
5association is a domestic association, its public organic
6record, if any, must satisfy the requirements of the law of this
7Commonwealth, except that the public organic record does not
8need to be signed and may omit any provision that is not
9required to be included in a restatement of the public organic
10record.
11(e) Filing of plan.--A plan of conversion that is signed by
12the converting association and meets all the requirements of
13subsection (b) may be delivered to the department for filing
14instead of a statement of conversion and on filing has the same
15effect. If a plan of conversion is filed as provided in this
16subsection, references in this chapter to a statement of
17conversion refer to the plan of conversion filed under this
18subsection.
19(f) Effectiveness of statement of conversion.--A statement
20of conversion is effective as provided in section 136(c)
21(relating to processing of documents by Department of State).
22(g) Effectiveness of conversion.--If the converted
23association is a domestic association, the conversion is
24effective when the statement of conversion is effective. If the
25converted association is a foreign association, the conversion
26is effective on the later of:
27(1) the date and time provided by the organic law of the
28converted association; or
29(2) when the statement of conversion is effective.
30(h) Cross references.--See sections 134 (relating to
1docketing statement) and 135 (relating to requirements to be met
2by filed documents).
3§ 356. Effect of conversion.
4(a) General rule.--When a conversion becomes effective, all
5of the following apply:
6(1) The converted association is:
7(i) Organized under and subject to the organic law
8of the converted association.
9(ii) The same association without interruption as
10the converting association.
11(iii) Deemed to have commenced its existence on the
12date the converting association commenced its existence
13in the jurisdiction in which the converting association
14was first created, incorporated, formed or otherwise came
15into existence, except for purposes of determining how
16the converted association is taxed.
17(2) All property of the converting association continues
18to be vested in the converted association without reversion
19or impairment, and the conversion shall not constitute a
20transfer of any of that property.
21(3) All debts, obligations and other liabilities of the
22converting association continue as debts, obligations and
23other liabilities of the converted association.
24(4) Except as provided by law or the plan of conversion,
25all of the rights, privileges, immunities, powers and
26purposes of the converting association continue to be vested
27without change in the converted association.
28(5) The name of the converted association may be
29substituted for the name of the converting association in any
30pending action or proceeding.
1(6) If a converted association is a filing association,
2its public organic record is effective.
3(7) If the converted association is a limited liability
4partnership or a limited liability limited partnership that
5is not using the alternative procedure in section 8201(f)
6(relating to scope), its statement of registration is
7effective.
8(8) If the converted association is an electing
9partnership, its statement of election is effective.
10(9) Any private organic rules of the converted
11association that are to be in record form and were approved
12as part of the plan of conversion are effective.
13(10) The interests in the converting association are
14converted or canceled in accordance with and as provided in
15the plan of conversion, and the interest holders of the
16converting association are entitled only to the rights
17provided to them under the plan and to any dissenters rights
18they have pursuant to section 317 (relating to contractual
19dissenters rights in entity transactions) or 353(c) (relating
20to approval of conversion).
21(11) Except as otherwise provided in the plan of
22conversion or organic rules pursuant to section 352(c)
23(relating to plan of conversion), the conversion does not
24constitute and shall not be deemed to result in a change of
25control of the converting association and the converted
26association shall remain under the control of the same
27persons that controlled the converting association
28immediately before the conversion.
29(b) No other rights.--The conversion does not give rise to
30any rights:
1(1) that a third party would have upon a transfer of
2assets, merger, dissolution, liquidation or winding up of the
3converting association, except as provided in subsection(a)
4(11); or
5(2) that an interest holder or governor would have upon
6a dissolution, liquidation or winding up of the converting
7association, except as provided in the organic law or organic
8rules of the converting association.
9(c) New interest holder liability.--When a conversion
10becomes effective, a person that becomes subject to interest
11holder liability with respect to a domestic association as a
12result of the conversion has interest holder liability only to
13the extent provided by the organic law of the association and
14only for those debts, obligations and other liabilities that
15arise after the conversion becomes effective.
16(d) Prior interest holder liability.--When a conversion
17becomes effective, the interest holder liability of a person
18that ceases to hold an interest in a domestic converting
19association with respect to which the person had interest holder
20liability is as follows:
21(1) The conversion does not discharge any interest
22holder liability under the organic law of the domestic
23converting association to the extent the interest holder
24liability arose before the conversion became effective.
25(2) The person does not have interest holder liability
26under the organic law of the domestic converting association
27for any debt, obligation or other liability that arises after
28the conversion becomes effective.
29(3) The organic law of the domestic converting
30association continues to apply to the release, collection or
1discharge of any interest holder liability preserved under
2paragraph (1) as if the conversion had not occurred.
3(4) The person has whatever rights of contribution from
4any other person as are provided by other law or the organic
5law or organic rules of the domestic converting association
6with respect to any interest holder liability preserved under
7paragraph (1) as if the conversion had not occurred.
8(e) Foreign converted association.--When a conversion
9becomes effective, a foreign association that is the converted
10association may be served with process in this Commonwealth for
11the collection and enforcement of any of its debts, obligations
12and other liabilities in accordance with applicable law.
13(f) Association not dissolved.--A conversion does not
14require a domestic converting association to liquidate, dissolve
15or wind up its affairs and does not constitute or cause the
16liquidation or dissolution of the association.
17(g) Taxes.--Any taxes, interest, penalties and public
18accounts of the Commonwealth claimed against the converting
19association that are settled, assessed or determined prior to or
20after the conversion shall be the liability of the converted
21association.
22(h) Cross references.--See sections 416 (relating to
23withdrawal deemed on certain transactions) and 417 (relating to
24required withdrawal on certain transactions).
25SUBCHAPTER F
26DIVISION
27Sec.
28361. Division authorized.
29362. Plan of division.
30363. Approval of division.
1364. Division without interest holder approval.
2365. Amendment or abandonment of plan of division.
3366. Statement of division; effectiveness.
4367. Effect of division.
5368. Allocation of liabilities in division.
6§ 361. Division authorized.
7(a) Domestic entities.--Except as provided in section 318
8(relating to excluded entities and transactions) or this
9section, by complying with this subchapter, a domestic entity
10may divide into:
11(1) the dividing entity and one or more new associations
12that are either domestic entities or foreign associations; or
13(2) two or more new associations that are either
14domestic entities or foreign associations.
15(b) Foreign associations.--
16(1) A foreign association may be created by the division
17of a domestic entity only if the division is authorized by
18the law of the jurisdiction of formation of the foreign
19association.
20(2) If the division is authorized by the law of the
21jurisdiction of formation of the foreign association, one or
22more of the resulting associations created in a division of a
23foreign association may be a domestic entity.
24(c) Exception.--A domestic banking institution that is a
25domestic entity may be a dividing association only if all of the
26resulting associations are domestic banking institutions.
27(d) Cross reference.--See section 314 (relating to
28regulatory conditions and required notices and approvals).
29§ 362. Plan of division.
30(a) General rule.--A domestic entity may become a dividing
1association under this chapter by approving a plan of division.
2The plan shall be in record form and contain all of the
3following:
4(1) The name and type of the dividing association.
5(2) A statement as to whether the dividing association
6will survive the division.
7(3) The name, jurisdiction of formation and type of each
8new resulting association.
9(4) The manner of:
10(i) If the dividing association survives the
11division and it is desired:
12(A) Canceling some, but less than all, of the
13interests in the dividing association.
14(B) Converting some, but less than all, of the
15interests in the dividing association into interests,
16securities, obligations, money, other property,
17rights to acquire interests or securities, or any
18combination of the foregoing.
19(ii) If the dividing association does not survive
20the division, canceling or converting the interests in
21the dividing association into interests, securities,
22obligations, money or property, rights to acquire
23interests or securities, or any combination of the
24foregoing.
25(iii) Allocating between or among the resulting
26associations the property of the dividing association
27that will not be owned by all of the resulting
28associations as tenants in common pursuant to section
29367(a)(4) (relating to effect of division) and those
30liabilities of the dividing association as to which not
1all of the resulting associations will be liable jointly
2and severally pursuant to section 368(a)(3) (relating to
3allocation of liabilities in division).
4(iv) Distributing the interests of the new
5associations.
6(5) For each new association:
7(i) its proposed public organic record if it will be
8a filing association; and
9(ii) the full text of its private organic rules that
10will be in record form.
11(6) If the dividing association will survive the
12division, any proposed amendments to its public organic
13record or private organic rules that are or will be in record
14form.
15(7) Provisions, if any, providing special treatment of
16interests in the dividing association held by any interest
17holder or group of interest holders as authorized by and
18subject to section 329 (relating to special treatment of
19interest holders).
20(8) The other terms and conditions of the division.
21(9) Any other provision required by:
22(i) the law of this Commonwealth;
23(ii) the law of the jurisdiction of formation of any
24of the resulting associations; or
25(iii) the organic rules of the dividing association.
26(b) Optional contents.--In addition to the requirements of
27subsection (a), a plan of division may contain any other
28provision not prohibited by law.
29(c) Description of property and liabilities.--It shall not
30be necessary for a plan of division to list each individual
1liability or item of property of the dividing association to be
2allocated to a resulting association so long as the liabilities
3and property are described in a reasonable manner.
4(d) Cross reference.--See section 316(c) (relating to
5contents of plan).
6§ 363. Approval of division.
7(a) Approval by domestic entities.--Except as provided in
8section 364 (relating to division without interest holder
9approval) or subsection (d), a plan of division in which the
10dividing association is a domestic entity is not effective
11unless it has been approved in both of the following ways:
12(1) The plan is approved by the domestic entity in
13accordance with the applicable provisions of Subchapter B
14(relating to approval of entity transactions).
15(2) The plan is approved in record form by each interest
16holder, if any, of the domestic entity that will have
17interest holder liability for debts, obligations and other
18liabilities that arise after the division becomes effective,
19unless, as to an interest holder that does not approve the
20plan, both of the following apply:
21(i) The organic rules of the domestic entity provide
22in record form for the approval of a division in which
23some or all of its interest holders become subject to
24interest holder liability by the vote or consent of fewer
25than all of the interest holders.
26(ii) The interest holder voted for or consented in
27record form to that provision of the organic rules or
28became an interest holder after the adoption of the
29provision.
30(b) Approval by foreign associations.--A division of a
1foreign association in which one or more of the resulting
2entities is a domestic entity is not effective unless it is
3approved by the foreign association in accordance with the law
4of its jurisdiction of formation.
5(c) Dissenters rights.--If a shareholder of a domestic
6business corporation that is to be a dividing association
7objects to the plan of division and complies with Subchapter D
8of Chapter 15 (relating to dissenters rights), the shareholder
9shall be entitled to dissenters rights to the extent provided in
10that subchapter. See sections 317 (relating to contractual
11dissenters rights in entity transactions) and 329 (relating to
12special treatment of interest holders).
13(d) Transitional approval requirements.--
14(1) If a provision of the organic rules of a dividing
15association that is a domestic entity of the type described
16was adopted before the date indicated and requires for the
17proposal or adoption of a plan of merger a specific number or
18percentage of votes of governors or interest holders or other
19special procedures, a plan of division shall not be proposed
20or adopted by the governors or interest holders without that
21number or percentage of votes or compliance with the other
22special procedures:
23(i) For a dividing association that is a domestic
24business corporation, before October 1, 1989.
25(ii) For a dividing association that is a general
26partnership, before {the Legislative Reference Bureau
27shall insert here the effective date of this chapter}.
28(iii) For a dividing association that is a limited
29partnership, before February 5, 1995.
30(iv) For a dividing association that is an
1unincorporated nonprofit association, before {the
2Legislative Reference Bureau shall insert here the
3effective date of this chapter}.
4(2) If a provision of any debt securities, notes or
5similar evidences of indebtedness for money borrowed, whether
6secured or unsecured, indentures or other contracts that were
7issued, incurred or executed by a dividing association that
8is a domestic entity of the type described before the date
9indicated, and the provision requires the consent of the
10obligee to a merger of the dividing association or treats
11such a merger as a default, the provision shall apply to a
12division of the dividing association as if it were a merger:
13(i) For a dividing association that is a domestic
14business corporation, before August 21, 2001.
15(ii) For a dividing association that is a general
16partnership, before {the Legislative Reference Bureau
17shall insert here the effective date of this section}.
18(iii) For a dividing association that is a limited
19partnership, before {the Legislative Reference Bureau
20shall insert here the effective date of this section}.
21(iv) For a dividing association that is an
22unincorporated nonprofit association, before {the
23Legislative Reference Bureau shall insert here the
24effective date of this section}.
25(3) When a provision described in paragraph (1) or (2)
26has been amended after the applicable date, the provision
27shall cease to be subject to the respective paragraph and
28shall thereafter apply only in accordance with its express
29terms.
30§ 364. Division without interest holder approval.
1(a) General rule.--Unless otherwise restricted by its
2organic rules, a plan of division of a domestic dividing
3association shall not require the approval of the interest
4holders of the dividing association if:
5(1) The plan does not do any of the following:
6(i) alter the jurisdiction of formation of the
7dividing association;
8(ii) provide for special treatment; or
9(iii) amend in any respect the provisions of the
10public organic record of the dividing association, except
11amendments which may be made without the approval of the
12interest holders.
13(2) Either:
14(i) the dividing association survives the division
15and all the interests and other securities and
16obligations, if any, of all of the new associations are
17owned solely by the dividing association; or
18(ii) the interests in each new association are
19distributed as provided in subsection (b).
20(b) Distribution of interests.--The requirements for
21distributing interests in each new association referred to in
22subsection (a)(2)(ii) are as follows:
23(1) if the dividing association is not a limited
24partnership, the dividing association has only one class of
25interests outstanding and the interests and other securities
26and obligations, if any, of each new association are
27distributed pro rata to the interest holders of the dividing
28association; or
29(2) if the dividing association is a limited
30partnership:
1(i) it has only one class of general partners and
2one class of limited partners;
3(ii) each new association is a limited partnership;
4and
5(iii) all of the following apply:
6(A) the general partner interests in each new
7association are distributed pro rata to the general
8partners of the dividing limited partnership;
9(B) the limited partner interests in each new
10association are distributed pro rata to the limited
11partners of the dividing limited partnership; and
12(C) no securities of obligations of any of the
13new associations are distributed to any of the
14interest holders of the dividing limited partnership.
15§ 365. Amendment or abandonment of plan of division.
16(a) Approval of amendment.--A plan of division in which the
17dividing association is a domestic entity may be amended in one
18of the following ways:
19(1) In the same manner as the plan was approved, if the
20plan does not provide for the manner in which it may be
21amended.
22(2) By its governors or interest holders in the manner
23provided in the plan, but an interest holder that was
24entitled to vote on or consent to approval of the plan is
25entitled to vote on or consent to any amendment of the plan
26that will change any of the following:
27(i) The amount or kind of interests, securities,
28obligations, money, other property, rights to acquire
29interests or securities, or any combination of the
30foregoing, to be received by any of the interest holders
1of the dividing association under the plan.
2(ii) The public organic record, if any, or private
3organic rules of any of the resulting associations that
4will be in effect immediately after the division becomes
5effective, except for changes that do not require
6approval of the interest holders of the resulting
7association under its organic law or organic rules.
8(iii) Any other terms or conditions of the plan, if
9the change would:
10(A) increase the interest holder liability to
11which the interest holder will be subject; or
12(B) otherwise adversely affect the interest
13holder in any material respect.
14(b) Approval of abandonment.--After a plan of division has
15been approved by a domestic entity that is the dividing
16association and before a statement of division becomes
17effective, the plan may be abandoned as provided in the plan.
18Unless prohibited by the plan, a domestic entity that is the
19dividing association may abandon the plan in the same manner as
20the plan was approved.
21(c) Statement of abandonment.--If a plan of division is
22abandoned after a statement of division has been delivered to
23the department for filing and before the statement becomes
24effective, a statement of abandonment, signed by the dividing
25association, must be delivered to the department for filing
26before the time the statement of division becomes effective. The
27statement of abandonment shall take effect on filing, and the
28division shall be abandoned and shall not become effective. The
29statement of abandonment shall contain all of the following:
30(1) The name of the dividing association.
1(2) The date on which the statement of division was
2filed by the department.
3(3) A statement that the division has been abandoned in
4accordance with this section.
5(d) Cross references.--See sections 134 (relating to
6docketing statement) and 135 (relating to requirements to be met
7by filed documents).
8§ 366. Statement of division; effectiveness.
9(a) General rule.--A statement of division shall be signed
10by the dividing association and delivered to the department for
11filing along with the certificates, if any, required by section
12139 (relating to tax clearance of certain fundamental
13transactions).
14(b) Contents.--A statement of division shall contain all of
15the following:
16(1) With respect to the dividing association:
17(i) its name;
18(ii) its jurisdiction of formation;
19(iii) its type;
20(iv) if it is a domestic filing association,
21domestic limited liability partnership or registered
22foreign association, the address of its registered
23office, including street and number, if any, in this
24Commonwealth, subject to section 109 (relating to name of
25commercial registered office provider in lieu of
26registered address);
27(v) if it is a domestic association that is not a
28domestic filing association or limited liability
29partnership, the address, including street and number, if
30any, of its principal office; and
1(vi) if it is a nonregistered foreign association,
2the address, including street and number, if any, of:
3(A) its registered or similar office, if any,
4required to be maintained by the law of its
5jurisdiction of formation; or
6(B) if it is not required to maintain a
7registered or similar office, its principal office.
8(2) A statement as to whether the dividing association
9will survive the division.
10(3) With respect to each resulting association created
11by the division:
12(i) its name;
13(ii) its jurisdiction of formation;
14(iii) its type;
15(iv) if it is a domestic filing association,
16domestic limited liability partnership or registered
17foreign association, the address of its registered
18office, including street and number, if any, in this
19Commonwealth, subject to section 109;
20(v) if it is a domestic association that is not a
21domestic filing association or limited liability
22partnership, the address, including street and number, if
23any, of its principal office; and
24(vi) if it is a nonregistered foreign association,
25the address, including street and number, if any, of:
26(A) its registered or similar office, if any,
27required to be maintained by the law of its
28jurisdiction of formation; or
29(B) if it is not required to maintain a
30registered or similar office, its principal office.
1(4) If the statement of division is not to be effective
2on filing, the later date or date and time on which it will
3become effective.
4(5) A statement that the division was approved in the
5following ways:
6(i) By a dividing association that is a domestic
7entity, in accordance with this chapter.
8(ii) By a dividing association that is a foreign
9association, in accordance with the law of its
10jurisdiction of formation.
11(6) If the dividing association is a domestic filing
12entity and survives the division, any amendment to its public
13organic record approved as part of the plan of division.
14(7) For each resulting association created by the
15division that is a domestic entity, its public organic
16record, if any, as an attachment. The public organic record
17does not need to state the name or address of an incorporator
18of a corporation, organizer of a limited liability company or
19similar person with respect to any other type of entity.
20(8) For each new association that is a domestic limited
21liability partnership or a domestic limited liability limited
22partnership that is not using the alternative procedure in
23section 8201(f) (relating to scope), its statement of
24registration as an attachment.
25(9) For each new association that is an electing
26partnership, its statement of election as an attachment.
27(10) The property and liabilities of the dividing
28association that are to be allocated to each resulting
29association, but it shall not be necessary to list in the
30statement of division each individual liability or item of
1property of the dividing association to be allocated to a
2resulting association so long as the liabilities and property
3are described in a reasonable manner.
4(c) Other provisions.--In addition to the requirements of
5subsection (b), a statement of division may contain any other
6provision not prohibited by law.
7(d) New domestic entity.--If a new association is a domestic
8entity, its public organic record, if any, must satisfy the
9requirements of the law of this Commonwealth, except that it
10does not need to be signed and may omit any provision that is
11not required to be included in a restatement of the public
12organic record.
13(e) Filing of plan.--A plan of division that is signed by
14the dividing association and meets all of the requirements of
15subsection (b) may be delivered to the department for filing
16instead of a statement of division and on filing has the same
17effect. If a plan of division is filed as provided in this
18subsection, references in this chapter to a statement of
19division refer to the plan of division filed under this
20subsection.
21(f) Effectiveness of statement of division.--A statement of
22division is effective as provided in section 136(c) (relating to
23processing of documents by Department of State).
24(g) Effectiveness of division.--A division takes effect as
25follows:
26(1) If the division is one in which all of the resulting
27associations are domestic associations, the division is
28effective when the statement of division is effective.
29(2) If the division is one in which one or more of the
30resulting associations is a foreign association, the division
1is effective on the later of:
2(i) the effectiveness of the statement of division;
3or
4(ii) when the division is effective under the law of
5each of the jurisdictions of formation of the foreign
6resulting associations.
7(h) Cross references.--See sections 134 (relating to
8docketing statement) and 135 (relating to requirements to be met
9by filed documents).
10§ 367. Effect of division.
11(a) General rule.--When a division becomes effective, all of
12the following apply:
13(1) If the dividing association is to survive the
14division:
15(i) It continues to exist.
16(ii) Its public organic record, if any, is amended
17as provided in the statement of division.
18(iii) Its private organic rules that are to be in
19record form, if any, are amended to the extent provided
20in the plan of division.
21(2) If the dividing association is not to survive the
22division, the dividing association ceases to exist.
23(3) With respect to each new association, all of the
24following apply:
25(i) It comes into existence.
26(ii) It holds any property allocated to it as the
27successor to the dividing association, and not by
28transfer, whether directly or indirectly, or by operation
29of law.
30(iii) Its public organic record, if any, and private
1organic rules are effective.
2(iv) If it is a limited liability limited
3partnership and is not using the alternative procedure in
4section 8201(f) (relating to scope), its statement of
5registration is effective.
6(v) If it is an electing partnership, its statement
7of election is effective.
8(4) Property of the dividing association:
9(i) That is allocated by the plan of division
10either:
11(A) vests in the new associations as provided in
12the plan of division; or
13(B) remains vested in the dividing association.
14(ii) That is not allocated by the plan of division:
15(A) remains vested in the dividing association,
16if the dividing association survives the division; or
17(B) is allocated to and vests equally in the
18resulting associations as tenants in common, if the
19dividing association does not survive the division.
20(iii) Vests as provided in this paragraph without
21transfer, reversion or impairment.
22(5) A resulting association to which a cause of action
23is allocated as provided in paragraph (4) may be substituted
24or added in any pending action or proceeding to which the
25dividing association is a party at the effective time of the
26division.
27(6) The liabilities of the dividing association are
28allocated between or among the resulting associations as
29provided in section 368 (relating to allocation of
30liabilities in division).
1(7) The interests in the dividing association that are
2to be converted or canceled in the division are converted or
3canceled, and the interest holders of those interests are
4entitled only to the rights provided to them under the plan
5of division and to any dissenters rights they may have
6pursuant to section 317 (relating to contractual dissenters
7rights in entity transactions) or 363(c) (relating to
8approval of division).
9(b) Dividing association not dissolved.--Except as provided
10in the organic law or organic rules of the dividing association,
11the division does not give rise to any rights that an interest
12holder, governor or third party would have upon a dissolution,
13liquidation or winding up of the dividing association.
14(c) New interest holder liability.--When a division becomes
15effective, a person that did not have interest holder liability
16with respect to the dividing association and that becomes
17subject to interest holder liability with respect to an
18association as a result of the division has interest holder
19liability only to the extent provided by the organic law of the
20association and only for those liabilities that arise after the
21division becomes effective.
22(d) Prior interest holder liability.--When a division
23becomes effective, the interest holder liability of a person
24that ceases to hold an interest in the dividing association that
25is a domestic entity with respect to which the person had
26interest holder liability is as follows:
27(1) The division does not discharge any interest holder
28liability under the organic law of the domestic entity to the
29extent the interest holder liability arose before the
30division became effective.
1(2) The person does not have interest holder liability
2under the organic law of the domestic entity for any debt,
3obligation or other liability that arises after the division
4becomes effective.
5(3) The organic law of the domestic entity continues to
6apply to the release, collection or discharge of any interest
7holder liability preserved under paragraph (1) as if the
8division had not occurred.
9(4) The person has whatever rights of contribution from
10any other person as are provided by other law or the organic
11law or organic rules of the domestic entity with respect to
12any interest holder liability preserved by paragraph (1) as
13if the division had not occurred.
14(e) Registration of registered foreign entity.--When a
15division of a registered foreign entity in which at least one of
16the resulting associations is a domestic entity becomes
17effective, the registration to do business of the dividing
18association is canceled if it does not survive the division.
19(f) Real property.--Except with regard to the real property
20of a dividing association that is a domestic nonprofit
21corporation, the allocation of any fee or freehold interest or
22leasehold having a remaining term of 30 years or more in any
23tract or parcel of real property situate in this Commonwealth
24owned by a dividing association, including property owned by a
25foreign association dividing solely under the law of another
26jurisdiction, to a new association is not effective until one of
27the following documents is filed in the office for the recording
28of deeds of the county, or each of them, in which the tract or
29parcel is situated:
30(1) A deed, lease or other instrument of confirmation
1describing the tract or parcel.
2(2) A duly executed duplicate original copy of the
3statement of division.
4(3) A copy of the statement of division certified by the
5department.
6(4) A declaration of acquisition stating the value of
7real estate holdings in the county of the new association as
8an acquired association.
9(g) Secured collateral.--The allocation to a new association
10of property that is collateral covered by an effective financing
11statement shall not be effective until a new financing statement
12naming the new association as a debtor is effective under
13Article 9 of the Uniform Commercial Code as enacted in the
14relevant jurisdiction.
15(h) Vehicles.--The provisions of 75 Pa.C.S. § 1114 (relating
16to transfer of vehicle by operation of law) shall not be
17applicable to an allocation of ownership of any motor vehicle,
18trailer or semitrailer to a new association under this section
19or under a similar law of any other jurisdiction, but any such
20allocation shall be effective only upon compliance with the
21requirements of 75 Pa.C.S. § 1116 (relating to issuance of new
22certificate following transfer), unless the dividing association
23is a domestic nonprofit corporation.
24(i) Disposition of interests.--Unless otherwise provided in
25the plan of division, the interests and any securities or
26obligations of each new association shall be distributed to:
27(1) the dividing association, if it survives the
28division; or
29(2) the holders of the common or other residuary
30interest of the dividing association that do not assert
1dissenters rights, pro rata, if the dividing association does
2not survive the division.
3§ 368. Allocation of liabilities in division.
4(a) General rule.--Except as provided in this section, when
5a division becomes effective, a resulting association is
6responsible:
7(1) Individually for the liabilities the resulting
8association undertakes or incurs in its own name after the
9division.
10(2) Individually for the liabilities of the dividing
11association that are allocated to or remain the liability of
12that resulting association to the extent specified in the
13plan of division.
14(3) Jointly and severally with the other resulting
15associations for the liabilities of the dividing association
16that are not allocated by the plan of division.
17(b) Joint and several liability.--If an allocation of
18property or liabilities in a division is ineffective or voidable
19pursuant to fraudulent transfer or similar law, both of the
20following apply:
21(1) The allocations of liabilities in the plan of
22division are ineffective and the liabilities of the dividing
23association become liabilities of all of the resulting
24associations, jointly and severally.
25(2) The validity and effectiveness of the division are
26not affected thereby.
27(c) Breach of obligation.--If a division breaches an
28obligation of the dividing association, all of the resulting
29associations are liable, jointly and severally, for the breach,
30but the validity and effectiveness of the division are not
1affected thereby.
2(d) Application of fraudulent transfer law.--In applying the
3law governing fraudulent transfers to a division:
4(1) The law applies to the dividing association as
5follows:
6(i) If it does not survive the division, it is not
7subject to that law.
8(ii) If it survives the division, it is subject to
9that law only in its capacity as a resulting association.
10(2) The law applies to each resulting association as
11follows:
12(i) The association is treated as a debtor.
13(ii) The liabilities allocated to the association
14are treated as an obligation incurred by the debtor.
15(iii) The association is treated as not having
16received a reasonably equivalent value in exchange for
17incurring the obligation.
18(iv) The property allocated to the association is
19treated as remaining property.
20(e) Distribution tests not applicable.--A direct or indirect
21allocation of property or liabilities in a division is not a
22distribution for purposes of the organic law of the dividing
23association or any of the resulting associations.
24(f) Liens and other charges.--Liens, security interests and
25other charges on the property of the dividing association are
26not impaired by the division, notwithstanding any otherwise
27enforceable allocation of liabilities of the dividing
28association.
29(g) Security agreements.--If the dividing association is
30bound by a security agreement governed by Article 9 of the
1Uniform Commercial Code as enacted in any jurisdiction and the
2security agreement provides that the security interest attaches
3to after-acquired collateral, each resulting association is
4bound by the security agreement.
5(h) Creditors and guarantors.--An allocation of a liability
6does not:
7(1) Affect the rights under other law of a creditor owed
8payment of the liability or performance of the obligation
9that creates the liability, except that those rights are
10available only against an association responsible for the
11liability or obligation under this section.
12(2) Release or reduce the obligation of a surety or
13guarantor of the liability or obligation.
14(i) Regulatory approvals.--The conditions in this section
15for freeing one or more of the resulting associations from the
16liabilities of the dividing association and for allocating some
17or all of the liabilities of the dividing association shall be
18conclusively deemed to have been satisfied if the plan of
19division has been approved by the Department of Banking and
20Securities, the Insurance Department or the Pennsylvania Public
21Utility Commission in a final order issued after August 21,
222001, that is not subject to further appeal.
23(j) Taxes.--Any taxes, interest, penalties and public
24accounts of the Commonwealth claimed against the dividing
25association that are settled, assessed or determined prior to or
26after the division shall be the liability of all of the
27resulting associations. Upon the application of the dividing
28association, the Department of Revenue, with the concurrence of
29the Department of Labor and Industry, shall release one or more,
30but less than all, of the resulting associations from liability
1and liens for all taxes, interest, penalties and public accounts
2of the dividing association due the Commonwealth for periods
3prior to the effective date of the division if those departments
4are satisfied that the public revenues will be adequately
5secured.
6SUBCHAPTER G
7DOMESTICATION
8Sec.
9371. Domestication authorized.
10372. Plan of domestication.
11373. Approval of domestication.
12374. Amendment or abandonment of plan of domestication.
13375. Statement of domestication; effectiveness.
14376. Effect of domestication.
15§ 371. Domestication authorized.
16(a) Domestic entities.--Except as provided in section 318
17(relating to excluded entities and transactions), by complying
18with this chapter, a domestic entity may become a domestic
19entity of the same type in a foreign jurisdiction if the
20domestication is authorized by the law of the foreign
21jurisdiction.
22(b) Foreign entities.--By complying with the applicable
23provisions of this subchapter, a foreign entity may become a
24domestic entity of the same type in this Commonwealth if this
25title provides for the formation of that type of entity.
26(c) Cross reference.--See section 314 (relating to
27regulatory conditions and required notices and approvals).
28§ 372. Plan of domestication.
29(a) General rule.--A domestic entity may become a foreign
30entity of the same type by approving a plan of domestication.
1The plan shall be in record form and contain all of the
2following:
3(1) The name and type of the domesticating entity.
4(2) The name and jurisdiction of formation of the
5domesticated entity.
6(3) The manner, if any, of canceling or converting those
7interests in the domesticating entity, if any, that are to
8receive special treatment as authorized by and subject to
9section 329 (relating to special treatment of interest
10holders).
11(4) The proposed public organic record of the
12domesticated entity if it is a filing entity.
13(5) The full text of the private organic rules of the
14domesticated entity that are proposed to be in record form.
15(6) The other terms and conditions of the domestication.
16(7) Any other provision required by:
17(i) law of this Commonwealth;
18(ii) the law of the jurisdiction of formation of the
19foreign domesticated entity; or
20(iii) the organic rules of the domesticating entity.
21(b) Optional contents.--In addition to the requirements of
22subsection (a), a plan of domestication may contain any other
23provision not prohibited by law.
24(c) Terms of interests.--Except as provided in the plan of
25domestication pursuant to section 329, the terms of the
26interests in the domesticated entity and the rights of the
27interest holders in the domesticated entity shall be
28substantially the same as the terms of the interests and the
29rights of the interest holders in the domesticating entity,
30except to the extent a different term or right is required by a
1provision of the organic law of the domesticated entity that
2cannot be varied in its organic rules.
3(d) Cross reference.--See section 316(c) (relating to
4contents of plan).
5§ 373. Approval of domestication.
6(a) Approval by domestic entities.--A plan of domestication
7in which the domesticating entity is a domestic entity is not
8effective unless it has been approved by the domestic entity in
9accordance with the applicable provisions of Subchapter B
10(relating to approval of entity transactions).
11(b) Approval by foreign entities.--A plan of domestication
12in which the domesticating entity is a foreign entity is not
13effective unless it has been approved in one of the following
14ways:
15(1) In accordance with the law of the jurisdiction of
16formation of the foreign entity.
17(2) By at least a majority of the votes cast with
18respect to approval of the domestication by all interest
19holders of the foreign entity entitled to vote generally on a
20merger to which the foreign entity is a party if the law of
21the foreign entity's jurisdiction of formation does not
22provide for a domestication of the foreign entity.
23(c) Cross references.--See sections 317 (relating to
24contractual dissenters rights in entity transactions) and 329
25(relating to special treatment of interest holders).
26§ 374. Amendment or abandonment of plan of domestication.
27(a) Approval of amendment.--A plan of domestication in which
28the domesticating entity is a domestic entity may be amended in
29one of the following ways:
30(1) In the same manner as the plan was approved, if the
1plan does not provide for the manner in which it may be
2amended.
3(2) By the governors or interest holders of the domestic
4entity in the manner provided in the plan, but an interest
5holder that was entitled to vote on or consent to approval of
6the plan is entitled to vote on or consent to any amendment
7of the plan that will change any of the following:
8(i) The amount or kind of interests, securities,
9obligations, money, other property, rights to acquire
10interests or securities, or any combination of the
11foregoing, to be received by any of the interest holders
12of the domesticating entity under the plan.
13(ii) The public organic record, if any, or private
14organic rules of the domesticated entity that will be in
15effect immediately after the domestication becomes
16effective, except for changes that do not require
17approval of the interest holders of the domesticated
18entity under its organic law or organic rules.
19(iii) Any other terms or conditions of the plan, if
20the change would adversely affect the interest holder in
21any material respect.
22(b) Approval of abandonment.--After a plan of domestication
23has been approved by a domestic entity that is the domesticating
24entity and before a statement of domestication becomes
25effective, the plan may be abandoned as provided in the plan.
26Unless prohibited by the plan, a domestic entity that is the
27domesticating entity may abandon the plan in the same manner as
28the plan was approved.
29(c) Statement of abandonment.--If a plan of domestication is
30abandoned after a statement of domestication has been delivered
1to the department for filing and before the statement becomes
2effective, a statement of abandonment, signed by the
3domesticating entity, must be delivered to the department for
4filing before the time the statement of domestication becomes
5effective. The statement of abandonment shall take effect on
6filing, and the domestication shall be abandoned and shall not
7become effective. The statement of abandonment shall contain all
8of the following:
9(1) The name of the domesticating entity.
10(2) The date on which the statement of domestication was
11delivered to the department for filing.
12(3) A statement that the domestication has been
13abandoned in accordance with this section.
14(d) Cross references.--See sections 134 (relating to
15docketing statement) and 135 (relating to requirements to be met
16by filed documents).
17§ 375. Statement of domestication; effectiveness.
18(a) General rule.--A statement of domestication shall be
19signed by the domesticating entity and delivered to the
20department for filing along with the certificates, if any,
21required by section 139 (relating to tax clearance of certain
22fundamental transactions).
23(b) Contents.--A statement of domestication shall contain
24all of the following:
25(1) With respect to the domesticating entity:
26(i) its name;
27(ii) its jurisdiction of formation;
28(iii) its type;
29(iv) the date on which it was first created,
30incorporated, formed or otherwise came into existence;
1(v) if it is a domestic filing entity, domestic
2limited liability partnership or registered foreign
3association, the address of its registered office,
4including street and number, if any, in this
5Commonwealth, subject to section 109 (relating to name of
6commercial registered office provider in lieu of
7registered address);
8(vi) if it is a domestic entity that is not a
9domestic filing entity or limited liability partnership,
10the address, including street and number, if any, of its
11principal office; and
12(vii) if it is a nonregistered foreign association,
13the address, including street and number, if any, of:
14(A) its registered or similar office, if any,
15required to be maintained by the law of its
16jurisdiction of formation; or
17(B) if it is not required to maintain a
18registered or similar office, its principal office.
19(2) With respect to the domesticated entity:
20(i) its name;
21(ii) its jurisdiction of formation;
22(iii) its type;
23(iv) if it is a domestic filing entity, domestic
24limited liability partnership or registered foreign
25association, the address of its registered office,
26including street and number, if any, in this
27Commonwealth, subject to section 109;
28(v) if it is a domestic entity that is not a
29domestic filing entity or limited liability partnership,
30the address, including street and number, if any, of its
1principal office; and
2(vi) if it is a nonregistered foreign association,
3the address, including street and number, if any, of:
4(A) its registered or similar office, if any,
5required to be maintained by the law of its
6jurisdiction of formation; or
7(B) if it is not required to maintain a
8registered or similar office, its principal office.
9(3) If the statement of domestication is not to be
10effective on filing, the later date or date and time on which
11it will become effective.
12(4) If the domesticating entity is a domestic entity, a
13statement that the plan of domestication was approved in
14accordance with Subchapter B (relating to approval of entity
15transactions) or, if the domesticating entity is a foreign
16entity, a statement that the domestication was approved in
17accordance with section 373(b) (relating to approval of
18domestication).
19(5) If the domesticated entity is a domestic filing
20entity, its public organic record as an attachment. The
21public organic record does not need to state the name or
22address of an incorporator of a corporation, organizer of a
23limited liability company or similar person with respect to
24any other type of entity.
25(6) If the domesticated entity is a domestic limited
26liability partnership or a domestic limited liability limited
27partnership that is not using the alternative procedure in
28section 8201(f) (relating to scope), its statement of
29registration as an attachment.
30(7) If the domesticated entity is an electing
1partnership, its statement of election as an attachment.
2(8) If the domesticating entity is to be a domestic
3entity in both this Commonwealth and the foreign
4jurisdiction, a statement to that effect.
5(c) Other provisions.--In addition to the requirements of
6subsection (b), a statement of domestication may contain any
7other provision not prohibited by law.
8(d) Public organic record of new domestic entity.--If the
9domesticated entity is a domestic entity, its public organic
10record, if any, must satisfy the requirements of the law of this
11Commonwealth, except that it does not need to be signed and may
12omit any provision that is not required to be included in a
13restatement of the public organic record.
14(e) Filing of plan.--A plan of domestication that is signed
15by a domesticating entity that is a domestic entity and meets
16all of the requirements of subsection (b) may be delivered to
17the department for filing instead of a statement of
18domestication and on filing has the same effect. If a plan of
19domestication is filed as provided in this subsection,
20references in this chapter to a statement of domestication refer
21to the plan of domestication filed under this subsection.
22(f) Effectiveness of domestication.--A domestication in
23which the domesticated entity is a domestic entity is effective
24when the statement of domestication is effective under section
25136(c) (relating to processing of documents by Department of
26State). A domestication in which the domesticated entity is a
27foreign entity becomes effective on the later of:
28(1) the date and time provided by the organic law of the
29domesticated entity; or
30(2) when the statement of domestication is effective.
1(g) Cross references.--See sections 134 (relating to
2docketing statement) and 135 (relating to requirements to be met
3by filed documents).
4§ 376. Effect of domestication.
5(a) General rule.--When a domestication becomes effective,
6all of the following apply:
7(1) The domesticated entity is:
8(i) organized under and subject to the organic law
9of the domesticated entity;
10(ii) the same entity without interruption as the
11domesticating entity;
12(iii) deemed to have commenced its existence on the
13date the domesticating entity commenced its existence in
14the jurisdiction in which the domesticating entity was
15first created, formed, incorporated or otherwise came
16into existence; and
17(iv) also organized under and subject to the organic
18law of the domesticating entity if the statement of
19domestication includes the statement provided for in
20section 375(b)(8) (relating to statement of
21domestication; effectiveness).
22(2) All property of the domesticating entity continues
23to be vested in the domesticated entity without transfer,
24reversion or impairment.
25(3) All debts, obligations and other liabilities of the
26domesticating entity continue as debts, obligations and other
27liabilities of the domesticated entity.
28(4) Except as provided by law or the plan of
29domestication, all of the rights, privileges, immunities,
30powers and purposes of the domesticating entity remain in the
1domesticated entity.
2(5) The name of the domesticated entity may be
3substituted for the name of the domesticating entity in any
4pending action or proceeding.
5(6) If the domesticated entity is a filing entity, its
6public organic record is effective and is binding on its
7interest holders.
8(7) If the domesticated entity is a domestic limited
9liability partnership or a limited liability limited
10partnership that is not using the alternative procedure in
11section 8201(f) (relating to scope), its statement of
12registration is effective.
13(8) If the domesticated entity is an electing
14partnership, its statement of election is effective.
15(9) The private organic rules of the domesticated entity
16that are to be in record form, if any, approved as part of
17the plan of domestication are effective.
18(10) The interest holders in the domesticating entity
19are interest holders in the domesticated entity except to the
20extent that an interest holder does not receive interests in
21the domesticated entity pursuant to a provision in the plan
22of domestication for special treatment pursuant to section
23329 (relating to special treatment of interest holders).
24(b) No dissolution rights.--Except as otherwise provided in
25the organic law or organic rules of a domestic domesticating
26entity, the domestication does not give rise to any rights that
27an interest holder, governor or third party would have upon a
28dissolution, liquidation or winding up of the domesticating
29entity.
30(c) Collection of liabilities.--When a domestication becomes
1effective, a foreign domesticated entity may be served with
2process in this Commonwealth for the collection and enforcement
3of any of its debts, obligations and other liabilities in
4accordance with applicable law.
5(d) New interest holder liability.--When a domestication
6becomes effective, a person that becomes subject to interest
7holder liability with respect to a domestic association as a
8result of the domestication has interest holder liability only
9to the extent provided by the organic law of the association and
10only for those debts, obligations and other liabilities that
11arise after the domestication is effective.
12(e) Prior interest holder liability.--When a domestication
13becomes effective, the following rules apply:
14(1) The domestication does not discharge any interest
15holder liability under the organic law of a domesticating
16domestic entity to the extent the interest holder liability
17arose before the domestication became effective.
18(2) A person does not have interest holder liability
19under the organic law of a domestic domesticating entity for
20any debt, obligation or other liability that arises after the
21domestication becomes effective.
22(3) The organic law of a domestic domesticating entity
23continues to apply to the release, collection or discharge of
24any interest holder liability preserved under paragraph (1)
25as if the domestication had not occurred.
26(4) A person has whatever rights of contribution from
27any other person as are provided by other law or the organic
28rules of a domestic domesticating entity with respect to any
29interest holder liability preserved under paragraph (1) as if
30the domestication had not occurred.
1(f) Service of process.--When a domestication becomes
2effective, a foreign domesticated entity may be served with
3process in this Commonwealth for the collection and enforcement
4of any of its debts, obligations and other liabilities in
5accordance with applicable law.
6(g) No dissolution.--A domestication does not require a
7domestic domesticating entity to liquidate, dissolve or wind up
8its affairs and does not constitute or cause the liquidation or
9dissolution of the entity.
10(h) Taxes.--Any taxes, interest, penalties and public
11accounts of the Commonwealth claimed against the domesticating
12entity that are settled, assessed or determined prior to or
13after the domestication shall be the liability of the
14domesticated entity.
15(i) Cross references.--See sections 416 (relating to
16withdrawal deemed on certain transactions) and 417 (relating to
17required withdrawal on certain transactions).
18CHAPTER 4
19FOREIGN ASSOCIATIONS
20Subchapter
21A. General Provisions
22B. Registration
23SUBCHAPTER A
24GENERAL PROVISIONS
25Sec.
26401. Application of chapter.
27402. Governing law.
28403. Activities not constituting doing business.
29§ 401. Application of chapter.
30(a) General rule.--Except as otherwise provided in this
1section or in subsequent provisions of this chapter, this
2chapter shall apply to all foreign associations.
3(b) Application to foreign banking institutions.--The words
4"foreign filing association" or "foreign association" in this
5chapter include an association that, if a domestic association,
6would be a banking institution or credit union. The term does
7not include an interstate bank as defined in section 102 of the
8act of November 30, 1965 (P.L.847, No.356), known as the Banking
9Code of 1965.
10(c) Domestic Federal financial association exclusion.--
11Except as permitted by act of Congress, this chapter shall not
12apply to:
13(1) Any of the following institutions or similar
14federally chartered institutions engaged in this Commonwealth
15in activities similar to those conducted by banking
16institutions or credit unions:
17(i) National banking associations organized under
18The National Bank Act (13 Stat. 99, 12 U.S.C. § 1 et
19seq.).
20(ii) Federal savings and loan associations and
21Federal mutual savings banks organized under the Home
22Owners' Loan Act (48 Stat. 128, 12 U.S.C. § 1461 et
23seq.).
24(iii) Federal credit unions organized under the
25Federal Credit Union Act (48 Stat. 1216, 12 U.S.C. § 1751
26et seq.).
27(2) Any other Federal association intended by the
28Congress to be treated for State law purposes as a domestic
29association of this Commonwealth.
30(d) Foreign insurance corporations.--A foreign insurance
1corporation shall be subject to this chapter, except as provided
2in section 402(e) (relating to governing law) or 411(g)
3(relating to registration to do business in this Commonwealth).
4(e) Government entities.--This chapter shall apply to and
5the words "association" and "foreign association" shall include
6a government or other sovereign, other than the Commonwealth or
7any of its political subdivisions, and any governmental
8corporation, agency or other entity thereof.
9(f) Admitted foreign fraternal benefit society exclusion.--
10This chapter shall not apply to any foreign corporation not-for-
11profit licensed to transact business in this Commonwealth under
12section 2455 of the act of May 17, 1921 (P.L.682, No.284), known
13as The Insurance Company Law of 1921.
14§ 402. Governing law.
15(a) General rule.--The law of the jurisdiction of formation
16of a foreign association governs the following:
17(1) The internal affairs of the association.
18(2) The liability that a person has as an interest
19holder or governor for a debt, obligation or other liability
20of the association.
21(3) The liability of a series or protected cell of a
22foreign association.
23(b) Effect of differences in law.--A foreign association is
24not precluded from registering to do business in this
25Commonwealth because of any difference between the law of the
26jurisdiction of formation of the foreign association and the law
27of this Commonwealth.
28(c) Limitations on domestic associations applicable.--
29Registration of a foreign association to do business in this
30Commonwealth does not authorize the foreign association to
1engage in any activities and affairs or exercise any power that
2a domestic association of the same type may not engage in or
3exercise in this Commonwealth.
4(d) Equal rights and privileges of registered foreign
5associations.--Except as otherwise provided by law, a registered
6foreign association, so long as its registration to do business
7is not terminated or canceled, shall enjoy the same rights and
8privileges as a domestic entity and shall be subject to the same
9liabilities, restrictions, duties and penalties now in force or
10hereafter imposed on domestic entities, to the same extent as if
11it had been formed under this title. A foreign insurance
12corporation shall be deemed a registered foreign association
13except as provided in subsection (e).
14(e) Foreign insurance corporations.--A foreign insurance
15corporation shall, insofar as it is engaged in the business of
16writing insurance or reinsurance as principal, be subject to the
17law of this Commonwealth regulating the conduct of the business
18of insurance by a foreign insurance corporation in lieu of the
19provisions of subsection (d) regarding its rights, privileges,
20liabilities, restrictions and duties and the penalties to which
21it may be subject.
22(f) Agricultural lands.--Interests in agricultural land
23shall be subject to the restrictions of, and escheatable as
24provided by, the act of April 6, 1980 (P.L.102, No.39), referred
25to as the Agricultural Land Acquisition by Aliens Law.
26§ 403. Activities not constituting doing business.
27(a) General rule.--Activities of a foreign filing
28association or foreign limited liability partnership that do not
29constitute doing business in this Commonwealth under this
30chapter shall include the following:
1(1) Maintaining, defending, mediating, arbitrating or
2settling an action or proceeding.
3(2) Carrying on any activity concerning its internal
4affairs, including holding meetings of its interest holders
5or governors.
6(3) Maintaining accounts in financial institutions.
7(4) Maintaining offices or agencies for the transfer,
8exchange and registration of securities of the association or
9maintaining trustees or depositories with respect to the
10securities.
11(5) Selling through independent contractors.
12(6) Soliciting or obtaining orders by any means if the
13orders require acceptance outside of this Commonwealth before
14the orders become contracts.
15(7) Creating or acquiring indebtedness, mortgages or
16security interests in property.
17(8) Securing or collecting debts or enforcing mortgages
18or security interests in property securing the debts and
19holding, protecting or maintaining property so acquired.
20(9) Conducting an isolated transaction that is not in
21the course of similar transactions.
22(10) Owning, without more, property.
23(11) Doing business in interstate or foreign commerce.
24(b) Participation in other associations.--Being an interest
25holder or governor of a foreign association that does business
26in this Commonwealth shall not by itself constitute doing
27business in this Commonwealth.
28(c) Applicability.--This section shall not apply in
29determining the contacts or activities that may subject a
30foreign filing association or foreign limited liability
1partnership to service of process, taxation or regulation under
2law of this Commonwealth other than this title.
3SUBCHAPTER B
4REGISTRATION
5Sec.
6411. Registration to do business in this Commonwealth.
7412. Foreign registration statement.
8413. Amendment of foreign registration statement.
9414. Noncomplying name of foreign association.
10415. Voluntary withdrawal of registration.
11416. Withdrawal deemed on certain transactions.
12417. Required withdrawal on certain transactions.
13418. Transfer of registration.
14419. Termination of registration.
15§ 411. Registration to do business in this Commonwealth.
16(a) Registration required.--Except as provided in section
17401 (relating to application of chapter) or subsection (g), a
18foreign filing association or foreign limited liability
19partnership may not do business in this Commonwealth until it
20registers with the department under this chapter.
21(b) Penalty for failure to register.--A foreign filing
22association or foreign limited liability partnership doing
23business in this Commonwealth may not maintain an action or
24proceeding in this Commonwealth unless it is registered to do
25business under this chapter.
26(c) Contracts and acts not impaired by failure to
27register.--The failure of a foreign filing association or
28foreign limited liability partnership to register to do business
29in this Commonwealth does not impair the validity of a contract
30or act of the foreign filing association or foreign limited
1liability partnership or preclude it from defending an action or
2proceeding in this Commonwealth.
3(d) Limitations on liability preserved.--A limitation on the
4liability of an interest holder or governor of a foreign filing
5association or of a partner of a foreign limited liability
6partnership is not waived solely because the foreign filing
7association or foreign limited liability partnership does
8business in this Commonwealth without registering.
9(e) Governing law not affected.--Section 402 (relating to
10governing law) applies even if a foreign association fails to
11register under this chapter.
12(f) Registered office.--Subject to section 109 (relating to
13name of commercial registered office provider in lieu of
14registered address), every registered foreign association shall
15have, and continuously maintain, in this Commonwealth a
16registered office, which may but need not be the same as its
17place of business in this Commonwealth.
18(g) Foreign insurance corporations.--A foreign insurance
19corporation is not required to register under this chapter.
20§ 412. Foreign registration statement.
21(a) General rule.--To register to do business in this
22Commonwealth, a foreign filing association or foreign limited
23liability partnership must deliver a foreign registration
24statement to the department for filing. The statement must be
25signed by the association and state all of the following:
26(1) Both:
27(i) The name of the foreign filing association or
28foreign limited liability partnership.
29(ii) If the name does not comply with section 202
30(relating to requirements for names generally), an
1alternate name adopted pursuant to section 414(a)
2(relating to noncomplying name of foreign association).
3(2) The type of association and, if it is a foreign
4limited partnership, whether it is a foreign limited
5liability limited partnership.
6(3) The association's jurisdiction of formation.
7(4) The street and mailing addresses of the
8association's principal office and, if the law of the
9association's jurisdiction of formation requires the
10association to maintain an office in that jurisdiction, the
11street and mailing addresses of the office.
12(5) Subject to section 109 (relating to name of
13commercial registered office provider in lieu of registered
14address), the address, including street and number, if any,
15of its registered office in this Commonwealth.
16(6) If the association may have one or more series, a
17statement to that effect.
18(b) Qualification or registration under former statutes.--
19The effect of a foreign association qualifying or registering to
20do business under prior provisions of law shall be as follows:
21(1) With respect to corporations for profit, the
22following apply:
23(i) If a foreign corporation for profit was admitted
24to do business in this Commonwealth by the filing of a
25power of attorney and statement under the former act of
26June 8, 1911 (P.L.710, No.283), entitled "An act to
27regulate the doing of business in this Commonwealth by
28foreign corporations; the registration thereof and
29service of process thereon; and providing punishment and
30penalties for the violation of its provisions; and
1repealing previous legislation on the subject," on {the
2Legislative Reference Bureau shall insert here the
3effective date of this chapter}, the power of attorney
4and statement shall be deemed a filed registration
5statement under this chapter. The corporation shall
6include in its first amended registration statement under
7this chapter the information required by this chapter to
8be set forth in a registration statement.
9(ii) A certificate of authority issued under the
10former provisions of the act of May 5, 1933 (P.L.364,
11No.106), known as the Business Corporation Law of 1933,
12or Subpart B of Part II (relating to business
13corporations) that is in effect on {the Legislative
14Reference Bureau shall insert here the effective date of
15this chapter} shall be deemed to be a registration
16statement under this chapter and shall be deemed not to
17contain any reference to the kind of business that the
18corporation proposes to do in this Commonwealth.
19(iii) A certificate of authority issued under the
20former provisions of Subchapter B of Chapter 41 (relating
21to qualification) that is in effect on {the Legislative
22Reference Bureau shall insert here the effective date of
23this chapter} shall be deemed to be a registration
24statement under this chapter.
25(2) With respect to corporations not-for-profit, the
26following apply:
27(i) If a foreign corporation not-for-profit was
28admitted to do business in this Commonwealth by the
29filing of a power of attorney and statement under the
30former act of June 8, 1911 (P.L.710, No.283), on {the
1Legislative Reference Bureau shall insert here the
2effective date of this chapter}, the power of attorney
3and statement shall be deemed a filed registration
4statement under this chapter. The corporation shall
5include in its first amended registration statement under
6this chapter the information required by this chapter to
7be set forth in a registration statement.
8(ii) A certificate of authority issued under the
9former provisions of the act of May 5, 1933 (P.L.289,
10No.105), known as the Nonprofit Corporation Law of 1933,
11or the former provisions of Article B of Part III known
12as the Nonprofit Corporation Law of 1972, as added by the
13act of November 15, 1972 (P.L.1063, No.271), that is in
14effect on {the Legislative Reference Bureau shall insert
15here the effective date of this chapter} shall be deemed
16to be a registration statement under this chapter and
17shall be deemed not to contain any reference to the kind
18of business that the corporation proposes to do in this
19Commonwealth.
20(iii) A certificate of authority issued under the
21former provisions of Subchapter B of Chapter 61 (relating
22to qualification) that is in effect on {the Legislative
23Reference Bureau shall insert here the effective date of
24this chapter} shall be deemed to be a registration
25statement under this chapter.
26(3) With respect to limited partnerships, the following
27apply:
28(i) An application for registration filed under the
29former provisions of 59 Pa.C.S. § 563 (relating to
30registration) that is in effect on {the Legislative
1Reference Bureau shall insert here the effective date of
2this chapter} shall be deemed to be a registration
3statement under this chapter and shall be deemed not to
4contain any reference to:
5(A) the general character of the business the
6limited partnership proposes to transact in this
7Commonwealth; or
8(B) the names and addresses of the limited
9partners.
10(ii) An application for registration filed under the
11former provisions of section 8582 (relating to
12registration) that is in effect on {the Legislative
13Reference Bureau shall insert here the effective date of
14this chapter} shall be deemed to be a registration
15statement under this chapter and shall be deemed not to
16contain:
17(A) any reference to the address of the office
18at which is kept a list of the names and addresses of
19the limited partners and their capital contributions;
20or
21(B) an undertaking to keep those records until
22the registration of the limited partnership in this
23Commonwealth is canceled or withdrawn.
24(4) An application for registration filed by a limited
25liability company under the former provisions of section 8981
26(relating to foreign limited liability companies) that is in
27effect on {the Legislative Reference Bureau shall insert here
28the effective date of this chapter} shall be deemed to be a
29registration statement under this chapter.
30(5) A certificate of authority issued to a business
1trust under the former provisions of section 9507 (relating
2to foreign business trusts) that is in effect on {the
3Legislative Reference Bureau shall insert here the effective
4date of this chapter} shall be deemed to be a registration
5statement under this chapter.
6(c) Cross references.--See:
7Section 134 (relating to docketing statement).
8Section 135 (relating to requirements to be met by filed
9documents).
10Section 4124 (relating to advertisement of registration
11to do business).
12Section 6124 (relating to advertisement of registration
13to do business).
14§ 413. Amendment of foreign registration statement.
15(a) General rule.--A registered foreign association shall
16deliver to the department for filing an amendment to its foreign
17registration statement if there is a change in any of the
18following:
19(1) The name of the association.
20(2) The type of association, including, if it is a
21foreign limited partnership, whether the association became
22or ceased to be a foreign limited liability limited
23partnership.
24(3) The association's jurisdiction of formation.
25(4) An address required by section 412(a)(4) (relating
26to foreign registration statement).
27(5) Its registered office.
28(6) The authority of the association to have one or more
29series.
30(b) Contents of amendment.--An amendment of a foreign
1registration statement shall be signed by the registered foreign
2association and state all of the following:
3(1) The name under which the registered foreign
4association is registered to do business in this
5Commonwealth.
6(2) Subject to section 109 (relating to name of
7commercial registered office provider in lieu of registered
8address), the address, including street and number, if any,
9of its registered office in this Commonwealth.
10(3) If the amendment is not to be effective on filing,
11the later date or date and time on which it will become
12effective.
13(4) The information that is to be changed.
14(c) Cross references.--See sections 134 (relating to
15docketing statement) and 135 (relating to requirements to be met
16by filed documents).
17§ 414. Noncomplying name of foreign association.
18(a) General rule.--A foreign filing association or foreign
19limited liability partnership whose name does not comply with
20Subchapter A of Chapter 2 (relating to names) may not register
21to do business in this Commonwealth until it adopts, for the
22purpose of doing business in this Commonwealth, an alternate
23name that complies with Subchapter A of Chapter 2. A foreign
24association that registers under an alternate name under this
25subsection is not required to comply with 54 Pa.C.S. Ch. 3
26(relating to fictitious names) with respect to the alternate
27name. After registering to do business in this Commonwealth
28under an alternate name, a foreign association shall do business
29in this Commonwealth under any of the following:
30(1) The alternate name.
1(2) Its proper name under the law of its jurisdiction of
2formation, with the addition of the name of its jurisdiction
3of formation.
4(3) A name the foreign association is authorized to use
5under 54 Pa.C.S. Ch. 3.
6(b) Change of name.--If a registered foreign association
7changes its name to one that does not comply with Subchapter A
8of Chapter 2, it may not do business in this Commonwealth until
9it complies with subsection (a) by amending its registration to
10adopt an alternate name that complies with Subchapter A of
11Chapter 2.
12§ 415. Voluntary withdrawal of registration.
13(a) General rule.--A registered foreign association may
14withdraw its registration by delivering a statement of
15withdrawal to the department for filing. The statement of
16withdrawal shall be signed by the association and state all of
17the following:
18(1) The name of the association and its jurisdiction of
19formation.
20(2) Subject to section 109 (relating to name of
21commercial registered office provider in lieu of registered
22address), the address, including street and number, if any,
23of its registered office in this Commonwealth.
24(3) That the association is not doing business in this
25Commonwealth.
26(4) That the association withdraws its registration to
27do business in this Commonwealth.
28(b) Filing.--The statement of withdrawal and the
29certificates required by section 139 (relating to tax clearance
30of certain fundamental transactions) shall be delivered to the
1department for filing and shall take effect on filing.
2(c) Cross references.--See sections 134 (relating to
3docketing statement) and 135 (relating to requirements to be met
4by filed documents).
5§ 416. Withdrawal deemed on certain transactions.
6(a) Conversion.--A registered foreign association that
7converts to any type of domestic filing entity or to a domestic
8limited liability partnership shall be deemed to have withdrawn
9its registration on the effective date of the conversion.
10(b) Domestication.--A registered foreign association that
11domesticates in this Commonwealth as a domestic filing entity or
12a domestic limited liability partnership shall be deemed to have
13withdrawn its registration on the effective date of the
14domestication.
15§ 417. Required withdrawal on certain transactions.
16(a) Application of section.--This section shall apply to a
17registered foreign association that has been:
18(1) dissolved and completed winding up;
19(2) converted to a domestic or foreign nonfiling
20association other than a limited liability partnership; or
21(3) the domesticating entity in a domestication in which
22the domesticated entity is a domestic or foreign nonfiling
23association other than a limited liability partnership.
24(b) Statement of withdrawal.--A registered foreign
25association described in subsection (a) shall deliver a
26statement of withdrawal and the certificates required by section
27139 (relating to tax clearance of certain fundamental
28transactions) to the department for filing. The statement shall
29be signed by the dissolved or converted association and state as
30follows:
1(1) In the case of a foreign association that has
2completed winding up, all of the following:
3(i) The name under which the association is
4registered to do business in this Commonwealth and its
5jurisdiction of formation.
6(ii) That the association withdraws its registration
7to do business in this Commonwealth.
8(2) In the case of a foreign association that has
9converted to a domestic or foreign nonfiling association
10other than a limited liability partnership, all of the
11following:
12(i) The name under which the association is
13registered to do business in this Commonwealth and its
14jurisdiction of formation.
15(ii) The type of nonfiling association to which the
16association has converted and its jurisdiction of
17formation.
18(iii) That the association withdraws its
19registration to do business in this Commonwealth.
20(3) In the case of a foreign association that has
21domesticated as a domestic or foreign nonfiling association
22other than a limited liability partnership in a jurisdiction
23other than this Commonwealth, all of the following:
24(i) The name under which the association is
25registered to do business in this Commonwealth and its
26jurisdiction of formation.
27(ii) The jurisdiction of formation of the
28domesticated association.
29(iii) That the association withdraws its
30registration to do business in this Commonwealth.
1(c) Cross references.--See sections 134 (relating to
2docketing statement) and 135 (relating to requirements to be met
3by filed documents).
4§ 418. Transfer of registration.
5(a) General rule.--If a registered foreign association
6merges into a nonregistered foreign association or converts to a
7foreign association required to register with the department to
8do business in this Commonwealth, the association shall deliver
9to the department for filing an application for transfer of
10registration. The application shall be signed by the surviving
11or converted association and state all of the following:
12(1) The name of the association before the merger or
13conversion.
14(2) The type of association it was before the merger or
15conversion.
16(3) The name of the applicant association and, if the
17name does not comply with section 202 (relating to
18requirements for names generally), an alternate name adopted
19in accordance with section 414(a) (relating to noncomplying
20name of foreign association).
21(4) The type of association of the applicant association
22and its jurisdiction of formation.
23(5) If different than the information for the foreign
24association before the merger or conversion, all of the
25following information regarding the applicant association:
26(i) The street and mailing addresses of the
27principal office of the association and, if the law of
28the association's jurisdiction of formation requires it
29to maintain an office in that jurisdiction, the street
30and mailing addresses of that office.
1(ii) Subject to section 109 (relating to name of
2commercial registered office provider in lieu of
3registered address), the address of its registered office
4in this Commonwealth.
5(b) Effect of application.--When an application for transfer
6of registration takes effect, the registration of the registered
7foreign association to do business in this Commonwealth is
8transferred without interruption to the association into which
9it has merged or to which it has been converted.
10(c) Cross references.--See sections 134 (relating to
11docketing statement) and 135 (relating to requirements to be met
12by filed documents).
13§ 419. Termination of registration.
14(a) General rule.--The department may terminate the
15registration of a registered foreign association in the manner
16provided in subsections (b) and (c) if the department finds that
17the association:
18(1) has not amended its registration when required by
19section 413 (relating to amendment of foreign registration
20statement); or
21(2) has been administratively, voluntarily or
22involuntarily dissolved under the law of its jurisdiction of
23formation.
24(b) Notice by department.--The department may terminate the
25registration of a registered foreign association by taking both
26of the following actions:
27(1) Filing a notice of termination or noting the
28termination in the records of the department.
29(2) Delivering a copy of the notice or the information
30in the notation to the association's registered office or, if
1the association does not have a registered office, to the
2association's principal office.
3(c) Contents.--The notice shall state, or the information in
4the notation under subsection (b) shall include, both of the
5following:
6(1) The effective date of the termination, which shall
7be no less than 60 days after the date the department
8delivers the copy.
9(2) The grounds for termination under subsection (a).
10(d) Effectiveness or cure.--The registration of a registered
11foreign association to do business in this Commonwealth shall
12cease on the effective date of the notice of termination or
13notation under subsection (b), unless before that date the
14association cures each ground for termination stated in the
15notice or notation. If the association cures each ground, the
16department shall file a record stating as such.
17Section 10. Section 1103(a) introductory paragraph and the
18definitions of "articles," "dissenters rights," "foreign
19business corporation," "nonqualified foreign business
20corporation," "plan," "qualified foreign business corporation"
21and "registered corporation" of Title 15 are amended to read:
22§ 1103. Definitions.
23(a) General definitions.--Subject to additional definitions
24contained in subsequent provisions of this subpart that are
25applicable to specific provisions of this subpart, the following
26words and phrases when used in Part I (relating to preliminary
27provisions) or in this subpart shall have the meanings given to
28them in this section unless the context clearly indicates
29otherwise:
30* * *
1"Articles." The original articles of incorporation, all
2amendments thereof and any other articles, statements or
3certificates permitted or required to be filed in the Department
4of State by sections 108 (relating to change in location or
5status of registered office provided by agent) and 138 (relating
6to statement of correction), Chapter 3 (relating to entity
7transactions) or this subpart and including what have heretofore
8been designated by law as certificates of incorporation or
9charters. If an amendment of the articles or [articles of merger
10or division made in the manner permitted by this subpart] a
11statement filed under Chapter 3 restates articles in their
12entirety [or if there are articles of consolidation, conversion
13or domestication], thenceforth the "articles" shall not include
14any prior documents and any certificate issued by the department
15with respect thereto shall so state.
16* * *
17["Dissenters rights." The rights and remedies provided by
18Subchapter D of Chapter 15 (relating to dissenters rights).]
19* * *
20"Foreign business corporation." A foreign corporation for
21profit subject to Chapter [41] 4 (relating to foreign [business
22corporations] associations), whether or not required to qualify
23thereunder.
24* * *
25["Nonqualified foreign business corporation." A foreign
26business corporation that is not a qualified foreign business
27corporation as defined in this section.]
28* * *
29["Plan." A plan of reclassification, merger, consolidation,
30exchange, asset transfer, division or conversion.]
1* * *
2["Qualified foreign business corporation." A foreign
3business corporation that is:
4(1) authorized under Chapter 41 (relating to foreign
5business corporations) to do business in this Commonwealth;
6or
7(2) a foreign insurance corporation.]
8* * *
9["Registered corporation." A corporation defined in section
102502 (relating to registered corporation status).]
11* * *
12Section 11. Sections 1105 and 1106 of Title 15 are amended
13to read:
14§ 1105. Restriction on equitable relief.
15A shareholder of a business corporation shall not have any
16right to obtain, in the absence of fraud or fundamental
17unfairness, an injunction against any proposed plan or amendment
18of articles authorized under any provision of this [subpart]
19title, nor any right to claim the right to valuation and payment
20of the fair value of his shares because of the plan or
21amendment, except that he may dissent and claim such payment if
22and to the extent provided in Subchapter D of Chapter 15
23(relating to dissenters rights) where this [subpart] title
24expressly provides that dissenting shareholders shall have the
25rights and remedies provided in that subchapter. Absent fraud or
26fundamental unfairness, the rights and remedies so provided
27shall be exclusive. Structuring a plan or transaction for the
28purpose or with the effect of eliminating or avoiding the
29application of dissenters rights is not fraud or fundamental
30unfairness within the meaning of this section.
1§ 1106. Uniform application of subpart.
2(a) General rule.--Except as provided in subsection (b),
3Part I (relating to preliminary provisions) and this subpart
4[and its amendments] are intended to provide uniform rules for
5the government and regulation of the affairs of business
6corporations and of their officers, directors and shareholders
7regardless of the date or manner of incorporation or
8qualification, or of the issuance of any shares thereof.
9(b) Exceptions.--
10(1) Unless expressly provided otherwise in any amendment
11to this subpart, the amendment shall take effect only
12prospectively.
13(2) An existing corporation lawfully using a name or, as
14part of its name, a word that could not be used as or
15included in the name of a corporation subsequently
16incorporated or qualified under this subpart may continue to
17use the name or word as part of its name if the use or
18inclusion of the word or name was lawful when first adopted
19by the corporation in this Commonwealth.
20(3) Subsection (a) shall not adversely affect the rights
21specifically provided for or saved in this [subpart] title.
22See:
23The provisions of section 341(c) (relating to interest
24exchange authorized).
25The provisions of section 351(c) (relating to conversion
26authorized).
27The transitional approval requirements set forth in
28section 363(d) (relating to approval of division).
29The provisions of section 1524(e) (relating to
30transitional provision).
1The provisions of section 1554(c) (relating to
2transitional provision).
3The cumulative voting rights set forth in section 1758(c)
4(2) (relating to cumulative voting).
5[The special voting requirements specified in section
61931(h) (relating to special requirements).
7The provisions of section 1952(g) and (h) (relating to
8proposal and adoption of plan of division).]
9The provisions of section 2301(d) (relating to
10transitional provisions).
11The provisions of section 2541(a)(2) and (3) and (c)
12(relating to application and effect of subchapter).
13The provisions of section 2543(b)(1) and (2) (relating to
14exceptions generally).
15The provisions of section 2551(b)(3)(i), (5) and (6)
16(relating to exceptions).
17The provisions of section 2553(b)(2) (relating to
18exception).
19(4) Except as otherwise expressly provided in the
20articles, a domestic corporation for profit that, on
21September 30, 1989, was not subject to the Business
22Corporation Law of 1933 and that thereafter becomes subject
23to this subpart by operation of law shall be deemed to have
24in effect articles that provide that the following provisions
25of this subpart shall not be applicable to the corporation:
26(i) Section 1726(a)(1) (relating to removal by the
27shareholders) insofar as it provides a statutory right on
28the part of shareholders to remove directors from office
29without assigning any cause.
30(ii) Section 1755(b)(2) (relating to special
1meetings).
2(iii) Section 1912(a)(2) (relating to proposal of
3amendments).
4Section 12. Sections 1303, 1304 and 1305 of Title 15 are
5repealed:
6[§ 1303. Corporate name.
7(a) General rule.--The corporate name may be in any
8language, but must be expressed in Roman letters or characters
9or Arabic or Roman numerals, and shall contain:
10(1) the word "corporation," "company," "incorporated" or
11"limited" or an abbreviation of any of them;
12(2) the word "association," "fund" or "syndicate"; or
13(3) words or abbreviations of like import in languages
14other than English.
15(b) Duplicate use of names.--The corporate name shall be
16distinguishable upon the records of the department from:
17(1) The name of any other domestic corporation for
18profit or not-for-profit which is either in existence or for
19which articles of incorporation have been filed but have not
20yet become effective, or of any foreign corporation for
21profit or not-for-profit which is either authorized to do
22business in this Commonwealth or for which an application for
23a certificate of authority has been filed but has not yet
24become effective, or the name of any association registered
25at any time under 54 Pa.C.S. Ch. 5 (relating to corporate and
26other association names), unless:
27(i) the other association:
28(A) has stated that it is about to change its
29name, or to cease to do business, or is being wound
30up, or is a foreign association about to withdraw
1from doing business in this Commonwealth, and the
2statement and a written consent to the adoption of
3the name is filed in the Department of State;
4(B) has filed with the Department of Revenue a
5certificate of out of existence, or has failed for a
6period of three successive years to file with the
7Department of Revenue a report or return required by
8law and the fact of such failure has been certified
9by the Department of Revenue to the Department of
10State;
11(C) has abandoned its name under the laws of its
12jurisdiction of incorporation, by amendment, merger,
13consolidation, division, expiration, dissolution or
14otherwise, without its name being adopted by a
15successor in a merger, consolidation, division or
16otherwise, and an official record of that fact,
17certified as provided by 42 Pa.C.S. § 5328 (relating
18to proof of official records), is presented by any
19person to the department; or
20(D) has had the registration of its name under
2154 Pa.C.S. Ch. 5 terminated.
22(2) A name the exclusive right to which is at the
23time reserved by any other person whatsoever in the
24manner provided by statute. A name shall be rendered
25unavailable for corporate use by reason of the filing in
26the Department of State of any assumed or fictitious name
27required by 54 Pa.C.S. Ch. 3 (relating to fictitious
28names) to be filed in the department only if and to the
29extent expressly so provided in that chapter.
30(c) Required approvals or conditions.--
1(1) The corporate name shall not imply that the
2corporation is:
3(i) A governmental agency of the Commonwealth or of
4the United States.
5(ii) A bank, bank and trust company, savings bank,
6private bank or trust company, as defined in the act of
7November 30, 1965 (P.L.847, No.356), known as the Banking
8Code of 1965, unless the corporation or proposed
9corporation is a Pennsylvania bank holding company or is
10otherwise authorized by statute to use its proposed name.
11(iii) An insurance company nor contain any of the
12words "annuity," "assurance," "beneficial," "bond,"
13"casualty," "endowment," "fidelity," "fraternal,"
14"guaranty," "indemnity," "insurance," "insurer,"
15"reassurance," "reinsurance," "surety" or "title" when
16used in such a way as to imply that the corporation is
17engaged in the business of writing insurance or
18reinsurance as principal or any other words of like
19purport unless it is duly licensed as an insurance
20company by its jurisdiction of incorporation or the
21Insurance Department certifies that it has no objection
22to the use by the corporation or proposed corporation of
23the designation. The corporate name of a domestic
24insurance corporation shall:
25(A) contain the word "mutual" if, and only if,
26it is a mutual insurance company; and
27(B) clearly designate the object and purpose of
28the corporation.
29(iv) A public utility corporation furnishing
30electric or gas service to the public, unless the
1corporation or proposed corporation has as an express
2corporate purpose the furnishing of service subject to
3the jurisdiction of the Pennsylvania Public Utility
4Commission or the Federal Energy Regulatory Commission.
5(v) A credit union. See 17 Pa.C.S. § 104 (relating
6to prohibition on use of words "credit union," etc.).
7(2) The corporate name shall not contain:
8(i) The word "college," "university" or "seminary"
9when used in such a way as to imply that it is an
10educational institution conforming to the standards and
11qualifications prescribed by the State Board of
12Education, unless there is submitted a certificate from
13the Department of Education certifying that the
14corporation or proposed corporation is entitled to use
15that designation.
16(ii) Words that constitute blasphemy, profane
17cursing or swearing or that profane the Lord's name.
18(iii) The words "engineer" or "engineering" or
19"surveyor" or "surveying" or any other word implying that
20any form of the practice of engineering or surveying as
21defined in the act of May 23, 1945 (P.L.913, No.367),
22known as the Professional Engineers Registration Law, is
23provided unless at least one of the incorporators of a
24proposed corporation or the directors of the existing
25corporation has been properly registered with the State
26Registration Board for Professional Engineers in the
27practice of engineering or surveying and there is
28submitted to the department a certificate from the board
29to that effect.
30(iv) The words "architect" or "architecture" or any
1other word implying that any form of the practice of
2architecture as defined in the act of December 14, 1982
3(P.L.1227, No.281), known as the Architects Licensure
4Law, is provided unless at least one of the incorporators
5of a proposed corporation or the directors of the
6existing corporation has been properly registered with
7the Architects Licensure Board in the practice of
8architecture and there is submitted to the department a
9certificate from the board to that effect.
10(v) The word "cooperative" or an abbreviation
11thereof unless the corporation is a cooperative
12corporation.
13(d) Other rights unaffected.--This section shall not
14abrogate or limit the law as to unfair competition or unfair
15practices nor derogate from the common law, the principles of
16equity or the provisions of Title 54 (relating to names) with
17respect to the right to acquire and protect trade names.
18Subsection (b) shall not apply if the applicant files in the
19department a certified copy of a final order of a court of
20competent jurisdiction establishing the prior right of the
21applicant to the use of a name in this Commonwealth.
22(e) Remedies for violation of section.--The use of a name in
23violation of this section shall not vitiate or otherwise affect
24the corporate existence, but any court having jurisdiction may
25enjoin the corporation from using or continuing to use a name in
26violation of this section upon the application of:
27(1) the Attorney General, acting on his own motion or at
28the instance of any administrative department, board or
29commission of this Commonwealth; or
30(2) any person adversely affected.
1(f) Cross references.--See sections 135(e) (relating to
2distinguishable names) and 1106(b)(2) (relating to uniform
3application of subpart).
4§ 1304. Required name changes by senior corporations.
5(a) Adoption of new name upon reactivation.--Where a
6corporate name is made available on the basis that the
7corporation or other association that formerly registered the
8name has failed to file in the Department of Revenue a report or
9a return required by law or where the corporation or other
10association has filed in the Department of Revenue a certificate
11of out of existence, the corporation or other association shall
12cease to have by virtue of its prior registration any right to
13the use of the name. The corporation or other association, upon
14withdrawal of the certificate of out of existence or upon the
15removal of its delinquency in the filing of the required reports
16or returns, shall make inquiry with the Department of State with
17regard to the availability of its name and, if the name has been
18made available to another domestic or foreign corporation for
19profit or not-for-profit or other association by virtue of these
20conditions, shall adopt a new name in accordance with law before
21resuming its activities.
22(b) Enforcement of undertaking to release name.--If a
23corporation has used a name that is not distinguishable upon the
24records of the Department of State from the name of another
25corporation or other association as permitted by section 1303(b)
26(1) (relating to duplicate use of names) and the other
27corporation or other association continues to use its name in
28this Commonwealth and does not change its name, cease to do
29business, be wound up or withdraw as it proposed to do in its
30consent or change its name as required by subsection (a), any
1court having jurisdiction may enjoin the other corporation or
2other association from continuing to use its name or a name that
3is not distinguishable therefrom upon the application of:
4(1) the Attorney General, acting on his own motion or at
5the instance of any administrative department, board or
6commission of this Commonwealth; or
7(2) any person adversely affected.
8§ 1305. Reservation of corporate name.
9(a) General rule.--The exclusive right to the use of a
10corporate name may be reserved by any person. The reservation
11shall be made by delivering to the Department of State an
12application to reserve a specified corporate name, executed by
13the applicant. If the department finds that the name is
14available for corporate use, it shall reserve the name for the
15exclusive use of the applicant for a period of 120 days.
16(b) Transfer of reservation.--The right to exclusive use of
17a specified corporate name reserved under subsection (a) may be
18transferred to any other person by delivering to the department
19a notice of the transfer, executed by the person who reserved
20the name, and specifying the name and address of the transferee.
21(c) Cross references.--See sections 134 (relating to
22docketing statement) and 4131 (relating to registration of
23name).]
24Section 13. Sections 1306(b), 1341(b)(3) and (d), 1571(a),
25(b), (c) and (h) and 1575(a) introductory paragraph and (b) of
26Title 15 are amended to read:
27§ 1306. Articles of incorporation.
28* * *
29(b) Other provisions authorized.--A provision of the
30original articles or a provision of the articles approved by the
1shareholders, in either case adopted under subsection (a)(8)
2(ii), may relax or be inconsistent with and supersede any
3provision of Chapter 3 (relating to entity transactions), 13
4(relating to incorporation), 15 (relating to corporate powers,
5duties and safeguards), 17 (relating to officers, directors and
6shareholders) or 19 (relating to fundamental changes) concerning
7the subjects specified in subsection (a)(8)(ii), except where a
8provision of those chapters expressly provides that the articles
9shall not relax or be inconsistent with any provision on a
10specified subject. Notwithstanding the foregoing, the articles
11may provide greater rights for shareholders than are authorized
12by any provision of those chapters that otherwise provides that
13the articles shall not relax or be inconsistent with any
14provision on a specified subject.
15* * *
16§ 1341. Statement of revival.
17* * *
18(b) Contents of statement.--The statement of revival shall
19be executed in the name of the forfeited or expired corporation
20and shall, subject to section 109 (relating to name of
21commercial registered office provider in lieu of registered
22address), set forth:
23* * *
24(3) The name that the corporation adopts as its new name
25if the adoption of a new name is required by section [1304]
26207 (relating to required name changes by senior
27[corporations] associations).
28* * *
29(d) Cross [reference.--See section 134 (relating to
30docketing statement).] references.--See sections 134 (relating
1to docketing statement) and 135 (relating to requirements to be
2met by filed documents).
3§ 1571. Application and effect of subchapter.
4(a) General rule.--Except as otherwise provided in
5subsection (b), any shareholder (as defined in section 1572
6(relating to definitions)) of a business corporation shall have
7the [right to dissent from, and to obtain payment of the fair
8value of his shares in the event of, any corporate action, or to
9otherwise obtain fair value for his shares,] rights and remedies
10provided in this subchapter in connection with a transaction
11under this title only where this [part] title expressly provides
12that a shareholder shall have the rights and remedies provided
13in this subchapter. See:
14Section 329(c) (relating to special treatment of interest
15holders).
16Section 333 (relating to approval of merger).
17Section 343 (relating to approval of interest exchange).
18Section 353 (relating to approval of conversion).
19Section 363 (relating to approval of division).
20Section 1906(c) (relating to dissenters rights upon special
21treatment).
22[Section 1930 (relating to dissenters rights).
23Section 1931(d) (relating to dissenters rights in share
24exchanges).]
25Section 1932(c) (relating to dissenters rights in asset
26transfers).
27[Section 1952(d) (relating to dissenters rights in division).
28Section 1962(c) (relating to dissenters rights in
29conversion).]
30Section 2104(b) (relating to procedure).
1Section 2324 (relating to corporation option where a
2restriction on transfer of a security is held invalid).
3Section 2325(b) (relating to minimum vote requirement).
4Section 2704(c) (relating to dissenters rights upon
5election).
6Section 2705(d) (relating to dissenters rights upon renewal
7of election).
8Section 2904(b) (relating to procedure).
9Section 2907(a) (relating to proceedings to terminate breach
10of qualifying conditions).
11Section 7104(b)(3) (relating to procedure).
12(b) Exceptions.--
13(1) Except as otherwise provided in paragraph (2), the
14holders of the shares of any class or series of shares shall
15not have the right to dissent and obtain payment of the fair
16value of the shares under this subchapter if, on the record
17date fixed to determine the shareholders entitled to notice
18of and to vote at the meeting at which a plan specified in
19any of section [1930, 1931(d),] 333, 343, 353, 363 or 1932(c)
20[or 1952(d)] is to be voted on or on the date of the first
21public announcement that such a plan has been approved by the
22shareholders by consent without a meeting, the shares are
23either:
24(i) listed on a national securities exchange [or
25designated as a national market system security on an
26interdealer quotation system by the National Association
27of Securities Dealers, Inc.] registered under section 6
28of the Exchange Act; or
29(ii) held beneficially or of record by more than
302,000 persons.
1(2) Paragraph (1) shall not apply to and dissenters
2rights shall be available without regard to the exception
3provided in that paragraph in the case of:
4(ii) Shares of any preferred or special class or
5series unless the articles, the plan or the terms of the
6transaction entitle all shareholders of the class or
7series to vote thereon and require for the adoption of
8the plan or the effectuation of the transaction the
9affirmative vote of a majority of the votes cast by all
10shareholders of the class or series.
11(iii) Shares entitled to dissenters rights under
12section 329(d) or 1906(c) (relating to dissenters rights
13upon special treatment).
14(3) The shareholders of a corporation that acquires by
15purchase, lease, exchange or other disposition all or
16substantially all of the shares, property or assets of
17another corporation by the issuance of shares, obligations or
18otherwise, with or without assuming the liabilities of the
19other corporation and with or without the intervention of
20another corporation or other person, shall not be entitled to
21the rights and remedies of dissenting shareholders provided
22in this subchapter regardless of the fact, if it be the case,
23that the acquisition was accomplished by the issuance of
24voting shares of the corporation to be outstanding
25immediately after the acquisition sufficient to elect a
26majority or more of the directors of the corporation.
27(c) Grant of optional dissenters rights.--The bylaws or a
28resolution of the board of directors may direct that all or a
29part of the shareholders shall have dissenters rights in
30connection with any corporate action or other transaction that
1would otherwise not entitle such shareholders to dissenters
2rights. See section 317 (relating to contractual dissenters
3rights in entity transactions).
4* * *
5(h) Cross references.--[See sections 1105 (relating to
6restriction on equitable relief), 1904 (relating to de facto
7transaction doctrine abolished), 1763(c) (relating to
8determination of shareholders of record) and 2512 (relating to
9dissenters rights procedure).] See:
10Section 315 (relating to nature of transactions).
11Section 1105 (relating to restriction on equitable
12relief).
13Section 1763(c) (relating to determination of
14shareholders of record).
15Section 2512 (relating to dissenters rights procedure).
16§ 1575. Notice to demand payment.
17(a) General rule.--If the proposed corporate action is
18approved by the required vote at a meeting of shareholders of a
19business corporation, the corporation shall [mail] deliver a
20further notice to all dissenters who gave due notice of
21intention to demand payment of the fair value of their shares
22and who refrained from voting in favor of the proposed action.
23If the proposed corporate action is approved by the shareholders
24by less than unanimous consent without a meeting or is taken
25without the need for approval by the shareholders, the
26corporation shall [send] deliver to all shareholders who are
27entitled to dissent and demand payment of the fair value of
28their shares a notice of the adoption of the plan or other
29corporate action. In either case, the notice shall:
30* * *
1(b) Time for receipt of demand for payment.--The time set
2for receipt of the demand and deposit of certificated shares
3shall be not less than 30 days from the [mailing] delivery of
4the notice.
5Section 14. Section 1757(a) and (b) of Title 15 are amended
6and the section is amended by adding a subsection to read:
7§ 1757. Action by shareholders.
8(a) General rule.--Except as otherwise provided in this
9[subpart] title or in a bylaw adopted by the shareholders,
10whenever any corporate action is to be taken by vote of the
11shareholders of a business corporation, it shall be authorized
12upon receiving the affirmative vote of a majority of the votes
13cast by all shareholders entitled to vote thereon and, if any
14shareholders are entitled to vote thereon as a class, upon
15receiving the affirmative vote of a majority of the votes cast
16by the shareholders entitled to vote as a class.
17(b) Changes in required vote.--Whenever a provision of this
18[subpart] title requires a specified number or percentage of
19votes of shareholders or of a class of shareholders for the
20taking of any action, a business corporation may prescribe in a
21bylaw adopted by the shareholders that a higher number or
22percentage of votes shall be required for the action. See
23sections 1504(d) (relating to amendment of voting provisions)
24and 1914(e) (relating to amendment of voting provisions).
25* * *
26(d) Cross reference.--See section 321 (relating to approval
27by business corporation).
28Section 15. Section 1766(c) of Title 15 is amended to read:
29§ 1766. Consent of shareholders in lieu of meeting.
30* * *
1(c) Effectiveness of action by partial consent.--An action
2taken pursuant to subsection (b) to approve a transaction under
3Chapter 3 (relating to entity transactions) shall not become
4effective until after at least ten days' notice of the action
5has been given to each shareholder entitled to vote thereon who
6has not consented thereto. Any other action may become effective
7immediately, but prompt notice that the action has been taken
8shall be given to each shareholder entitled to vote thereon that
9has not consented. This subsection may not be relaxed by any
10provision of the articles.
11* * *
12Section 16. Sections 1901, 1902 and 1904 of Title 15 are
13repealed:
14[§ 1901. Omission of certain provisions from filed plans.
15(a) General rule.--A plan as filed in the Department of
16State under any provision of this chapter may omit all
17provisions of the plan except provisions, if any:
18(1) that are intended to amend or constitute the
19operative provisions of the articles of a corporation as in
20effect subsequent to the effective date of the plan; or
21(2) that allocate or specify the respective assets and
22liabilities of the resulting corporations, in the case of a
23plan of division.
24(b) Availability of full plan.--If any of the provisions of
25a plan are omitted from the plan as filed in the department, the
26articles of amendment, merger, consolidation, exchange, division
27or conversion shall state that the full text of the plan is on
28file at the principal place of business of the reclassifying,
29surviving or new or a resulting corporation and shall state the
30address thereof. A corporation that takes advantage of this
1section shall furnish a copy of the full text of the plan, on
2request and without cost, to any shareholder of any corporation
3that was a party to the plan and, unless all parties to the plan
4were closely held corporations, on request and at cost to any
5other person.
6§ 1902. Statement of termination.
7(a) General rule.--If a statement with respect to shares,
8articles of amendment or articles of merger, consolidation,
9exchange, division or conversion of a business corporation or to
10which it is a party have been filed in the Department of State
11prior to the termination of the amendment or plan pursuant to
12provisions therefor set forth in the resolution or petition
13relating to the amendment or in the plan, the termination shall
14not be effective unless the corporation shall, prior to the time
15the amendment or plan is to become effective, file in the
16department a statement of termination. The statement of
17termination shall be executed by the corporation that filed the
18amendment or by each corporation that is a party to the plan,
19unless the plan permits termination by less than all of the
20corporations, in which case the statement shall be executed on
21behalf of the corporation or corporations exercising the right
22to terminate, and shall set forth:
23(1) A copy of the statement with respect to shares,
24articles of amendment or articles of merger, consolidation,
25exchange, division or conversion relating to the amendment or
26plan that is terminated.
27(2) A statement that the amendment or plan has been
28terminated in accordance with the provisions therefor set
29forth therein.
30(b) Cross references.--See sections 134 (relating to
1docketing statement) and 138 (relating to statement of
2correction).
3§ 1904. De facto transaction doctrine abolished.
4The doctrine of de facto mergers, consolidations and other
5fundamental transactions is abolished and the rules laid down by
6Bloch v. Baldwin Locomotive Works, 75 Pa. D. & C. 24 (C.P. Del.
7Cty. 1950), and Marks v. The Autocar Co., 153 F.Supp. 768 (E.D.
8Pa. 1954), and similar cases are overruled. A transaction that
9in form satisfies the requirements of this subpart may be
10challenged by reason of its substance only to the extent
11permitted by section 1105 (relating to restriction on equitable
12relief).]
13Section 17. Section 1905 of Title 15 is amended to read:
14§ 1905. Proposal of fundamental transactions.
15Where any provision of this chapter requires that an
16amendment of the articles[, a plan] or the dissolution of a
17business corporation be proposed or approved by action of the
18board of directors, that requirement shall be construed to
19authorize and be satisfied by the written agreement or consent
20of all of the shareholders of the corporation entitled to vote
21thereon.
22Section 18. Section 1906(a), (d)(1) and (e) of Title 15 are
23amended and the section is amended by adding a subsection to
24read:
25§ 1906. Special treatment of holders of shares of same class or
26series.
27(a) General rule.--Except as otherwise restricted in the
28articles, a plan may contain a provision classifying the holders
29of shares of a class or series into one or more separate groups
30by reference to any facts or circumstances that are not
1manifestly unreasonable and providing mandatory treatment for
2shares of the class or series held by particular shareholders or
3groups of shareholders that differs materially from the
4treatment accorded other shareholders or groups of shareholders
5holding shares of the same class or series (including a
6provision modifying or rescinding rights previously created
7under this section) if:
8(1) (i) [such provision is specifically authorized by a
9majority of the votes cast by all shareholders entitled
10to vote on the plan, as well as] the plan is approved by
11a majority of the votes cast by any class or series of
12shares any of the shares of which are so classified into
13groups, whether or not such class or series would
14otherwise be entitled to vote on the plan; and
15(ii) the provision voted on specifically enumerates
16the type and extent of the special treatment authorized;
17or
18(2) under all the facts and circumstances, a court of
19competent jurisdiction finds such special treatment is
20undertaken in good faith, after reasonable deliberation and
21is in the best interest of the corporation.
22* * *
23(c.2) Notice to shareholders.--A notice to shareholders of a
24meeting called to act on a plan that provides for special
25treatment must state that the plan provides for special
26treatment. The notice must identify the shareholders receiving
27special treatment unless the notice is accompanied by either a
28summary of the plan that includes that information or the full
29text of the plan.
30(d) Exceptions.--This section shall not apply to:
1(1) [The creation or issuance of securities, contracts,
2warrants or other instruments evidencing any shares, option
3rights, securities having conversion or option rights or
4obligations authorized by section 2513 (relating to disparate
5treatment of certain persons).] (Reserved).
6* * *
7(e) Definition.--As used in this section, the term "plan"
8[includes] means:
9(1) an amendment of the articles that effects a
10reclassification of shares, whether or not the amendment is
11accompanied by a separate plan of reclassification; [and]
12(1.1) a plan of asset transfer adopted under section
131932(b) (relating to voluntary transfer of corporate assets);
14or
15(2) a resolution recommending that the corporation
16dissolve voluntarily adopted under section 1972(a) (relating
17to proposal of voluntary dissolution).
18Section 19. Section 1908 of Title 15 is amended to read:
19§ 1908. Submission of matters to shareholders.
20A business corporation may agree, in record form, to submit
21an amendment [or plan] or other matter to its shareholders
22whether or not the board of directors determines, at any time
23after approving the matter, that the matter is no longer
24advisable and recommends that the shareholders reject or vote
25against it, regardless of whether the board of directors changes
26its recommendation. If a corporation so agrees to submit a
27matter to its shareholders, the matter is deemed to have been
28validly adopted by the corporation when it has been approved by
29the shareholders.
30Section 20. Subchapter C heading of Chapter 19 of Title 15
1is amended to read:
2SUBCHAPTER C
3MERGER [,CONSOLIDATION, SHARE EXCHANGES] LIABILITIES AND
4SALE OF ASSETS
5Section 21. Sections 1921, 1922, 1923, 1924, 1925, 1926,
61927, 1928, 1929, 1930 and 1931 of Title 15 are repealed:
7[§ 1921. Merger and consolidation authorized.
8(a) Domestic surviving or new corporation.--Any two or more
9domestic business corporations, or any two or more foreign
10business corporations, or any one or more domestic business
11corporations and any one or more foreign business corporations,
12may, in the manner provided in this subchapter, be merged into
13one of the domestic business corporations, designated in this
14subchapter as the surviving corporation, or consolidated into a
15new corporation to be formed under this subpart, if the foreign
16business corporations are authorized by the laws of the
17jurisdiction under which they are incorporated to effect a
18merger or consolidation with a corporation of another
19jurisdiction.
20(b) Foreign surviving or new corporation.--Any one or more
21domestic business corporations, and any one or more foreign
22business corporations, may, in the manner provided in this
23subchapter, be merged into one of the foreign business
24corporations, designated in this subchapter as the surviving
25corporation, or consolidated into a new corporation to be
26incorporated under the laws of the jurisdiction under which one
27of the foreign business corporations is incorporated, if the
28laws of that jurisdiction authorize a merger with or
29consolidation into a corporation of another jurisdiction.
30(c) Business trusts, partnerships and other associations.--
1The provisions of this subchapter applicable to domestic and
2foreign business corporations shall also be applicable to a
3merger, consolidation or share exchange to which a domestic
4business corporation is a party or in which such a corporation
5is the resulting entity with, into or involving a domestic or
6foreign partnership, business trust or other association. The
7surviving, resulting or exchanging entity in such a merger,
8consolidation or share exchange may be a corporation,
9partnership, business trust or other association. Subject to the
10provisions of Subchapter F of Chapter 85 (relating to merger and
11consolidation), the powers and duties vested in and imposed upon
12the board of directors and shareholders in this subchapter shall
13be exercised and performed by the group of persons under the
14direction of whom the business and affairs of the partnership,
15business trust or other association are managed and the holders
16or owners of beneficial or other interests in the partnership,
17business trust or other association, respectively, irrespective
18of the names by which the managing group and the holders or
19owners of beneficial or other interests are designated. The
20units into which the beneficial or other interests in the
21partnership, business trust or other association are divided
22shall be deemed to be shares for the purposes of applying the
23provisions of this subchapter to a merger, consolidation or
24share exchange involving the partnership, business trust or
25other association. Dissenters rights shall be available to a
26holder of beneficial or other interests only to the extent, if
27any, provided by the law under which the partnership, business
28trust or other association is organized.
29§ 1922. Plan of merger or consolidation.
30(a) Preparation of plan.--A plan of merger or consolidation,
1as the case may be, shall be prepared, setting forth:
2(1) The terms and conditions of the merger or
3consolidation.
4(2) If the surviving or new corporation is or is to be a
5domestic business corporation:
6(i) any changes desired to be made in the articles,
7which may include a restatement of the articles in the
8case of a merger; or
9(ii) in the case of a consolidation, all of the
10statements required by this subpart to be set forth in
11restated articles.
12(3) The manner and basis of converting the shares of
13each corporation into shares or other securities or
14obligations of the surviving or new corporation, or of
15canceling some or all of the shares of a corporation, as the
16case may be, and, if any of the shares of any of the
17corporations that are parties to the merger or consolidation
18are not to be canceled or converted solely into shares or
19other securities or obligations of the surviving or new
20corporation, the shares or other securities or obligations of
21any other person or cash, property or rights that the holders
22of such shares are to receive in exchange for, or upon
23conversion of, such shares, and the surrender of any
24certificates evidencing them, which securities or
25obligations, if any, of any other person or cash, property or
26rights may be in addition to or in lieu of the shares or
27other securities or obligations of the surviving or new
28corporation.
29(4) Any provisions desired providing special treatment
30of shares held by any shareholder or group of shareholders as
1authorized by, and subject to the provisions of, section 1906
2(relating to special treatment of holders of shares of same
3class or series).
4(5) Such other provisions as are deemed desirable.
5(b) Post-adoption amendment.--A plan of merger or
6consolidation may contain a provision that the boards of
7directors of the constituent corporations may amend the plan at
8any time prior to its effective date, except that an amendment
9made subsequent to the adoption of the plan by the shareholders
10of any constituent domestic business corporation shall not
11change:
12(1) The amount or kind of shares, obligations, cash,
13property or rights to be received in exchange for or on
14conversion of all or any of the shares of the constituent
15domestic business corporation adversely to the holders of
16those shares.
17(2) Any provision of the articles of the surviving or
18new corporation as it is to be in effect immediately
19following consummation of the merger or consolidation except
20provisions that may be amended without the approval of the
21shareholders under section 1914(c)(2) (relating to adoption
22of amendments).
23(3) Any of the other terms and conditions of the plan if
24the change would adversely affect the holders of any shares
25of the constituent domestic business corporation.
26(c) Proposal.--Except where the approval of the board of
27directors is unnecessary under this subchapter, every merger or
28consolidation shall be proposed in the case of each domestic
29business corporation by the adoption by the board of directors
30of a resolution approving the plan of merger or consolidation.
1Except where the approval of the shareholders is unnecessary
2under this subchapter, the board of directors shall direct that
3the plan be submitted to a vote of the shareholders entitled to
4vote thereon at a regular or special meeting of the
5shareholders.
6(d) Party to plan or transaction.--A corporation,
7partnership, business trust or other association that approves a
8plan in its capacity as a shareholder or creditor of a merging
9or consolidating corporation, or that furnishes all or a part of
10the consideration contemplated by a plan, does not thereby
11become a party to the plan or the merger or consolidation for
12the purposes of this subchapter.
13(e) Reference to outside facts.--Any of the terms of a plan
14of merger or consolidation may be made dependent upon facts
15ascertainable outside of the plan if the manner in which the
16facts will operate upon the terms of the plan is set forth in
17the plan. Such facts may include, without limitation, actions or
18events within the control of or determinations made by a party
19to the plan or a representative of a party to the plan.
20§ 1923. Notice of meeting of shareholders.
21(a) General rule.--Notice in record form of the meeting of
22shareholders that will act on the proposed plan must be given to
23each shareholder of record, whether or not entitled to vote
24thereon, of each domestic business corporation that is a party
25to the merger or consolidation. The notice must include or be
26accompanied by the proposed plan or a summary thereof. If
27Subchapter D of Chapter 15 (relating to dissenters rights) is
28applicable to the holders of shares of any class or series, the
29text of that subchapter and of section 1930 (relating to
30dissenters rights) must be furnished to the holders of shares of
1that class or series. If the surviving or new corporation will
2be a nonregistered corporation, the notice must state that a
3copy of its bylaws as they will be in effect immediately
4following the merger or consolidation will be furnished to any
5shareholder on request and without cost.
6(b) Cross references.--See Subchapter A of Chapter 17
7(relating to notice and meetings generally) and sections 2512
8(relating to dissenters rights procedure) and 2528 (relating to
9notice of shareholder meetings).
10§ 1924. Adoption of plan.
11(a) General rule.--The plan of merger or consolidation shall
12be adopted upon receiving the affirmative vote of a majority of
13the votes cast by all shareholders entitled to vote thereon of
14each of the domestic business corporations that is a party to
15the merger or consolidation and, if any class or series of
16shares is entitled to vote thereon as a class, the affirmative
17vote of a majority of the votes cast in each class vote. The
18holders of any class or series of shares of a domestic
19corporation that is a party to a merger or consolidation that
20effects any change in the articles of the corporation shall be
21entitled to vote as a class on the plan if they would have been
22entitled to a class vote under the provisions of section 1914
23(relating to adoption of amendments) had the change been
24accomplished under Subchapter B (relating to amendment of
25articles). A proposed plan of merger or consolidation shall not
26be deemed to have been adopted by the corporation unless it has
27also been approved by the board of directors, regardless of the
28fact that the board has directed or suffered the submission of
29the plan to the shareholders for action.
30(b) Adoption by board of directors.--
1(1) Unless otherwise required by its bylaws, a plan of
2merger or consolidation shall not require the approval of the
3shareholders of a constituent domestic business corporation
4if:
5(i) whether or not the constituent corporation is
6the surviving corporation:
7(A) the surviving or new corporation is a
8domestic business corporation and the articles of the
9surviving or new corporation are identical to the
10articles of the constituent corporation, except
11changes that under section 1914(c) (relating to
12adoption by board of directors) may be made without
13shareholder action;
14(B) each share of the constituent corporation
15outstanding immediately prior to the effective date
16of the merger or consolidation is to continue as or
17to be converted into, except as may be otherwise
18agreed by the holder thereof, an identical share of
19the surviving or new corporation after the effective
20date of the merger or consolidation; and
21(C) the plan provides that the shareholders of
22the constituent corporation are to hold in the
23aggregate shares of the surviving or new corporation
24to be outstanding immediately after the effectiveness
25of the plan entitled to cast at least a majority of
26the votes entitled to be cast generally for the
27election of directors;
28(ii) immediately prior to the adoption of the plan
29and at all times thereafter prior to its effective date,
30another corporation that is a party to the plan owns
1directly or indirectly 80% or more of the outstanding
2shares of each class of the constituent corporation; or
3(iii) no shares of the constituent corporation have
4been issued prior to the adoption of the plan of merger
5or consolidation by the board of directors pursuant to
6section 1922 (relating to plan of merger or
7consolidation).
8(2) If a merger or consolidation is effected pursuant to
9paragraph (1)(i) or (iii), the plan of merger or
10consolidation shall be deemed adopted by the constituent
11corporation when it has been adopted by the board of
12directors pursuant to section 1922.
13(3) If a merger or consolidation of a subsidiary
14corporation with a parent corporation is effected pursuant to
15paragraph (1)(ii), the plan of merger or consolidation shall
16be deemed adopted by the subsidiary corporation when it has
17been adopted by the board of the parent corporation and
18neither approval of the plan by the board of directors of the
19subsidiary corporation nor execution of articles of merger or
20consolidation by the subsidiary corporation shall be
21necessary.
22(4) (i) Unless otherwise required by its bylaws, a plan
23of merger or consolidation providing for the merger or
24consolidation of a domestic business corporation
25(referred to in this paragraph as the "constituent
26corporation") with or into a single indirect wholly owned
27subsidiary (referred to in this paragraph as the
28"subsidiary corporation") of the constituent corporation
29shall not require the approval of the shareholders of
30either the constituent corporation or the subsidiary
1corporation if all of the provisions of this paragraph
2are satisfied.
3(ii) A merger or consolidation under this paragraph
4shall satisfy the following conditions:
5(A) The constituent corporation and the
6subsidiary corporation are the only parties to the
7merger or consolidation, other than the resulting
8corporation, if any, in a consolidation (the
9corporation that survives or results from the merger
10or consolidation is referred to in this paragraph as
11the "resulting subsidiary").
12(B) Each share or fraction of a share of the
13capital stock of the constituent corporation
14outstanding immediately prior to the effective time
15of the merger or consolidation is converted in the
16merger or consolidation into a share or equal
17fraction of a share of capital stock of a holding
18company having the same designations, rights, powers
19and preferences and the qualifications, limitations
20and restrictions as the share of stock of the
21constituent corporation being converted in the merger
22or consolidation.
23(C) The holding company and the resulting
24subsidiary are each domestic business corporations.
25(D) Immediately following the effective time of
26the merger or consolidation, the articles of
27incorporation and bylaws of the holding company are
28identical to the articles of incorporation and bylaws
29of the constituent corporation immediately before the
30effective time of the merger or consolidation except
1for changes that could be made without shareholder
2approval under section 1914(c) (relating to adoption
3by board of directors).
4(E) Immediately following the effective time of
5the merger or consolidation, the resulting subsidiary
6is a direct or indirect wholly owned subsidiary of
7the holding company.
8(F) The directors of the constituent corporation
9become or remain the directors of the holding company
10upon the effective time of the merger or
11consolidation.
12(G) The board of directors of the constituent
13corporation has made a good faith determination that
14the shareholders of the constituent corporation will
15not recognize gain or loss for United States Federal
16Income Tax purposes.
17(iii) As used in this paragraph only, the term
18"holding company" means a corporation that, from its
19incorporation until consummation of the merger or
20consolidation governed by this paragraph, was at all
21times a direct wholly owned subsidiary of the constituent
22corporation and whose capital stock is issued in the
23merger or consolidation.
24(iv) If the holding company is a registered
25corporation, the shares of the holding company issued in
26connection with the merger or consolidation shall be
27deemed to have been acquired at the time that the shares
28of the constituent corporation converted in the merger or
29consolidation were acquired.
30(5) A plan of merger or consolidation adopted by the
1board of directors under this subsection without the approval
2of the shareholders shall not, by itself, create or impair
3any rights or obligations on the part of any person under
4section 2538 (relating to approval of transactions with
5interested shareholders) or under Subchapters E (relating to
6control transactions), F (relating to business combinations),
7G (relating to control-share acquisitions), H (relating to
8disgorgement by certain controlling shareholders following
9attempts to acquire control), I (relating to severance
10compensation for employees terminated following certain
11control-share acquisitions) and J (relating to business
12combination transactions - labor contracts) of Chapter 25,
13nor shall it change the standard of care applicable to the
14directors under Subchapter B of Chapter 17 (relating to
15fiduciary duty).
16(c) Termination of plan.--Prior to the time when a merger or
17consolidation becomes effective, the merger or consolidation may
18be terminated pursuant to provisions therefor, if any, set forth
19in the plan. If articles of merger or consolidation have been
20filed in the Department of State prior to the termination, a
21statement under section 1902 (relating to statement of
22termination) shall be filed in the department.
23(d) Cross reference.--See section 2539 (relating to adoption
24of plan of merger by board of directors).
25§ 1925. Authorization by foreign corporations.
26The plan of merger or consolidation shall be authorized,
27adopted or approved by each foreign business corporation that
28desires to merge or consolidate in accordance with the laws of
29the jurisdiction in which it is incorporated.
30§ 1926. Articles of merger or consolidation.
1Upon the adoption of the plan of merger or consolidation by
2the corporations desiring to merge or consolidate, as provided
3in this subchapter, articles of merger or articles of
4consolidation, as the case may be, shall, except as provided by
5section 1924(b)(3) (relating to adoption by board of directors),
6be executed by each corporation and shall, subject to section
7109 (relating to name of commercial registered office provider
8in lieu of registered address), set forth:
9(1) The name and the location of the registered office,
10including street and number, if any, of the domestic
11surviving or new corporation or, in the case of a foreign
12surviving or new corporation, the name of the corporation and
13its jurisdiction of incorporation, together with either:
14(i) If a qualified foreign business corporation, the
15address, including street and number, if any, of its
16registered office in this Commonwealth.
17(ii) If a nonqualified foreign business corporation,
18the address, including street and number, if any, of its
19principal office under the laws of the jurisdiction in
20which it is incorporated.
21(2) The name and address, including street and number,
22if any, of the registered office of each other domestic
23business corporation and qualified foreign business
24corporation that is a party to the merger or consolidation.
25(3) If the plan is to be effective on a specified date,
26the hour, if any, and the month, day and year of the
27effective date.
28(4) The manner in which the plan was adopted by each
29domestic corporation and, if one or more foreign corporations
30are parties to the merger or consolidation, the fact that the
1plan was authorized, adopted or approved, as the case may be,
2by each of the foreign corporations in accordance with the
3laws of the jurisdiction in which it is incorporated.
4(5) Except as provided in section 1901 (relating to
5omission of certain provisions from filed plans), the plan of
6merger or consolidation.
7§ 1927. Filing of articles of merger or consolidation.
8(a) General rule.--The articles of merger or articles of
9consolidation, as the case may be, and the certificates or
10statement, if any, required by section 139 (relating to tax
11clearance of certain fundamental transactions) shall be filed in
12the Department of State.
13(b) Cross reference.--See section 134 (relating to docketing
14statement).
15§ 1928. Effective date of merger or consolidation.
16Upon the filing of the articles of merger or the articles of
17consolidation in the Department of State or upon the effective
18date specified in the plan of merger or consolidation, whichever
19is later, the merger or consolidation shall be effective. The
20merger or consolidation of one or more domestic business
21corporations into a foreign business corporation shall be
22effective according to the provisions of law of the jurisdiction
23in which the foreign corporation is incorporated, but not until
24articles of merger or articles of consolidation have been
25adopted and filed, as provided in this subchapter.
26§ 1929. Effect of merger or consolidation.
27(a) Single surviving or new corporation.--Upon the merger or
28consolidation becoming effective, the several corporations
29parties to the merger or consolidation shall be a single
30corporation which, in the case of a merger, shall be the
1corporation designated in the plan of merger as the surviving
2corporation and, in the case of a consolidation, shall be the
3new corporation provided for in the plan of consolidation. The
4separate existence of all corporations parties to the merger or
5consolidation shall cease, except that of the surviving
6corporation, in the case of a merger. The surviving or new
7corporation, as the case may be, if it is a domestic business
8corporation, shall not thereby acquire authority to engage in
9any business or exercise any right that a corporation may not be
10incorporated under this subpart to engage in or exercise.
11(b) Property rights.--All the property, real, personal and
12mixed, and franchises of each of the corporations parties to the
13merger or consolidation, and all debts due on whatever account
14to any of them, including subscriptions for shares and other
15choses in action belonging to any of them, shall be deemed to be
16vested in and shall belong to the surviving or new corporation,
17as the case may be, without further action, and the title to any
18real estate, or any interest therein, vested in any of the
19corporations shall not revert or be in any way impaired by
20reason of the merger or consolidation. The surviving or new
21corporation shall thenceforth be responsible for all the
22liabilities of each of the corporations so merged or
23consolidated. Liens upon the property of the merging or
24consolidating corporations shall not be impaired by the merger
25or consolidation and any claim existing or action or proceeding
26pending by or against any of the corporations may be prosecuted
27to judgment as if the merger or consolidation had not taken
28place or the surviving or new corporation may be proceeded
29against or substituted in its place.
30(c) Taxes.--Any taxes, interest, penalties and public
1accounts of the Commonwealth claimed against any of the merging
2or consolidating corporations that are settled, assessed or
3determined prior to or after the merger or consolidation shall
4be the liability of the surviving or new corporation and,
5together with interest thereon, shall be a lien against the
6franchises and property, both real and personal, of the
7surviving or new corporation.
8(d) Articles of incorporation.--In the case of a merger, the
9articles of incorporation of the surviving domestic business
10corporation, if any, shall be deemed to be amended to the
11extent, if any, that changes in its articles are stated in the
12plan of merger. In the case of a consolidation into a domestic
13business corporation, the statements that are set forth in the
14plan of consolidation, or articles of incorporation set forth
15therein, shall be deemed to be the articles of incorporation of
16the new corporation.
17§ 1930. Dissenters rights.
18(a) General rule.--If any shareholder of a domestic business
19corporation that is to be a party to a merger or consolidation
20pursuant to a plan of merger or consolidation objects to the
21plan of merger or consolidation and complies with the provisions
22of Subchapter D of Chapter 15 (relating to dissenters rights),
23the shareholder shall be entitled to the rights and remedies of
24dissenting shareholders therein provided, if any. See also
25section 1906(c) (relating to dissenters rights upon special
26treatment).
27(b) Plans adopted by directors only.--Except as otherwise
28provided pursuant to section 1571(c) (relating to grant of
29optional dissenters rights), Subchapter D of Chapter 15 shall
30not apply to any of the shares of a corporation that is a party
1to a merger or consolidation pursuant to section 1924(b)(1)(i)
2or (4) (relating to adoption by board of directors).
3(c) Cross references.--See sections 1571(b) (relating to
4exceptions) and 1904 (relating to de facto transaction doctrine
5abolished).
6§ 1931. Share exchanges.
7(a) General rule.--All the outstanding shares of one or more
8classes or series of a domestic business corporation, designated
9in this section as the exchanging corporation, may, in the
10manner provided in this section, be acquired by any person,
11designated in this section as the acquiring person, through an
12exchange of all the shares pursuant to a plan of exchange. The
13plan of exchange may also provide for the shares of any other
14class or series of the exchanging corporation to be canceled or
15converted into shares, other securities or obligations of any
16person or cash, property or rights. The procedure authorized by
17this section shall not be deemed to limit the power of any
18person to acquire all or part of the shares or other securities
19of any class or series of a corporation through a voluntary
20exchange or otherwise by agreement with the holders of the
21shares or other securities.
22(b) Plan of exchange.--A plan of exchange shall be prepared,
23setting forth:
24(1) The terms and conditions of the exchange.
25(2) The manner and basis of canceling the shares of the
26exchanging corporation or exchanging or converting the shares
27of the exchanging corporation into shares or other securities
28or obligations of the acquiring person, and, if any of the
29shares of the exchanging corporation are not to be exchanged
30or converted solely into shares or other securities or
1obligations of the acquiring person, the shares or other
2securities or obligations of any other person or cash,
3property or rights that the holders of the shares of the
4exchanging corporation are to receive in exchange for, or
5upon conversion of, the shares and the surrender of any
6certificates evidencing them, which securities or
7obligations, if any, of any other person or cash, property
8and rights may be in addition to or in lieu of the shares or
9other securities or obligations of the acquiring person.
10(3) Any changes desired to be made in the articles of
11the exchanging corporation, which may include a restatement
12of the articles.
13(4) Any provisions desired providing special treatment
14of shares held by any shareholder or group of shareholders as
15authorized by, and subject to the provisions of, section 1906
16(relating to special treatment of holders of shares of same
17class or series). Notwithstanding subsection (a), a plan that
18provides special treatment may affect less than all of the
19outstanding shares of a class or series.
20(5) Such other provisions as are deemed desirable.
21(c) Proposal and adoption.--The plan of exchange shall be
22proposed and adopted and may be amended after its adoption and
23terminated by the exchanging corporation in the manner provided
24by this subchapter for the proposal, adoption, amendment and
25termination of a plan of merger except section 1924(b) (relating
26to adoption by board of directors). There shall be included in,
27or enclosed with, the notice of the meeting of shareholders to
28act on the plan a copy or a summary of the plan and, if
29Subchapter D of Chapter 15 (relating to dissenters rights) is
30applicable, a copy of the subchapter and of subsection (d). The
1holders of any class of shares to be exchanged or converted
2pursuant to the plan of exchange shall be entitled to vote as a
3class on the plan if they would have been entitled to vote on a
4plan of merger that affects the class in substantially the same
5manner as the plan of exchange.
6(d) Dissenters rights in share exchanges.--Any holder of
7shares that are to be canceled, exchanged or converted pursuant
8to a plan of exchange who objects to the plan and complies with
9the provisions of Subchapter D of Chapter 15 shall be entitled
10to the rights and remedies of dissenting shareholders therein
11provided, if any. See section 1906(c) (relating to dissenters
12rights upon special treatment).
13(e) Articles of exchange.--Upon adoption of a plan of
14exchange, as provided in this section, articles of exchange
15shall be executed by the exchanging corporation and shall set
16forth:
17(1) The name and, subject to section 109 (relating to
18name of commercial registered office provider in lieu of
19registered address), the location of the registered office,
20including street and number, if any, of the exchanging
21corporation.
22(2) If the plan is to be effective on a specified date,
23the hour, if any, and the month, day and year of the
24effective date.
25(3) The manner in which the plan was adopted by the
26exchanging corporation.
27(4) Except as provided in section 1901 (relating to
28omission of certain provisions from filed plans), the plan of
29exchange.
30The articles of exchange shall be filed in the Department of
1State. See sections 134 (relating to docketing statement) and
2135 (relating to requirements to be met by filed documents).
3(f) Effective date.--Upon the filing of articles of exchange
4in the department or upon the effective date specified in the
5plan of exchange, whichever is later, the plan shall become
6effective.
7(g) Effect of plan.--Upon the plan of exchange becoming
8effective, the shares of the exchanging corporation that are,
9under the terms of the plan, to be canceled, converted or
10exchanged shall cease to exist or shall be converted or
11exchanged. The former holders of the shares shall thereafter be
12entitled only to the shares, other securities or obligations or
13cash, property or rights into which they have been converted or
14for which they have been exchanged in accordance with the plan,
15and the acquiring person shall be the holder of the shares of
16the exchanging corporation stated in the plan to be acquired by
17such person. The articles of incorporation of the exchanging
18corporation shall be deemed to be amended to the extent, if any,
19that changes in its articles are stated in the plan of exchange.
20(h) Special requirements.--If any provision of the articles
21or bylaws of an exchanging domestic business corporation adopted
22before October 1, 1989, requires for the proposal or adoption of
23a plan of merger, consolidation or asset transfer a specific
24number or percentage of votes of directors or shareholders or
25other special procedures, the plan of exchange shall not be
26proposed by the directors or adopted by the shareholders without
27that number or percentage of votes or compliance with the other
28special procedures.
29(i) Reference to outside facts.--Any of the terms of a plan
30of exchange may be made dependent upon facts ascertainable
1outside of the plan if the manner in which the facts will
2operate upon the terms of the plan is set forth in the plan.
3Such facts may include, without limitation, actions or events
4within the control of or determinations made by a party to the
5plan or a representative of a party to the plan.]
6Section 22. Section 1932(b)(1), (2) and (4) of Title 15 are
7amended to read:
8§ 1932. Voluntary transfer of corporate assets.
9* * *
10(b) Shareholder approval required.--
11(1) A sale, lease, exchange or other disposition of all,
12or substantially all, the property and assets, with or
13without the goodwill, of a business corporation, if not made
14pursuant to subsection (a) or (d) or to section 1551
15(relating to distributions to shareholders) or Subchapter [D]
16F of Chapter 3 (relating to division), may be made only
17pursuant to a plan of asset transfer in the manner provided
18in this subsection. A corporation selling, leasing or
19otherwise disposing of all, or substantially all, its
20property and assets is referred to in this subsection and in
21subsection (c) as the "transferring corporation."
22(2) The property or assets of a direct or indirect
23subsidiary corporation that is controlled by a parent
24corporation shall also be deemed the property or assets of
25the parent corporation for the purposes of this subsection
26and of subsection (c). A merger [or consolidation] to which
27such a subsidiary corporation is a party and in which a third
28party acquires direct or indirect ownership of the property
29or assets of the subsidiary corporation constitutes an "other
30disposition" of the property or assets of the parent
1corporation within the meaning of that term as used in this
2section.
3* * *
4(4) The plan of asset transfer shall be proposed and
5adopted, and may be amended after its adoption and
6terminated, by the transferring corporation in the manner
7provided in [this subchapter] Chapter 3 (relating to entity
8transactions) for the proposal, adoption, amendment and
9termination of a plan of merger, except section [1924(b)
10(relating to adoption by board of directors)] 321(d)
11(relating to approval by business corporation). The
12procedures of [this subchapter] Chapter 3 shall not be
13applicable to the person acquiring the property or assets of
14the transferring corporation. There shall be included in, or
15enclosed with, the notice of the meeting of the shareholders
16of the transferring corporation to act on the plan a copy or
17a summary of the plan and, if Subchapter D of Chapter 15
18(relating to dissenters rights) is applicable, a copy of the
19subchapter and of subsection (c).
20* * *
21Section 23. Subchapter D heading and sections 1951, 1952,
221953, 1954, 1955, 1956, 1957, Subchapter E and section 1980 of
23Chapter 19 of Title 15 are repealed:
24[SUBCHAPTER D
25DIVISION
26§ 1951. Division authorized.
27(a) Division of domestic corporation.--Any domestic business
28corporation may, in the manner provided in this subchapter, be
29divided into two or more domestic business corporations
30incorporated or to be incorporated under this article, or into
1one or more domestic business corporations and one or more
2foreign business corporations to be incorporated under the laws
3of another jurisdiction or jurisdictions, or into two or more
4foreign business corporations, if the laws of the other
5jurisdictions authorize the division.
6(b) Division of foreign corporation.--Any foreign business
7corporation may, in the manner provided in this subchapter, be
8divided into one or more domestic business corporations to be
9incorporated under this subpart and one or more foreign business
10corporations incorporated or to be incorporated under the laws
11of another jurisdiction or jurisdictions, or into two or more
12domestic business corporations, if the foreign business
13corporation is authorized under the laws of the jurisdiction
14under which it is incorporated to effect a division.
15(c) Surviving and new corporations.--The corporation
16effecting a division, if it survives the division, is designated
17in this subchapter as the surviving corporation. All
18corporations originally incorporated by a division are
19designated in this subchapter as new corporations. The surviving
20corporation, if any, and the new corporation or corporations are
21collectively designated in this subchapter as the resulting
22corporations.
23§ 1952. Proposal and adoption of plan of division.
24(a) Preparation of plan.--A plan of division shall be
25prepared, setting forth:
26(1) The terms and conditions of the division, including
27the manner and basis of:
28(i) The reclassification of the shares of the
29surviving corporation, if there be one, and, if any of
30the shares of the dividing corporation are not to be
1converted solely into shares or other securities or
2obligations of one or more of the resulting corporations,
3the shares or other securities or obligations of any
4other person, or cash, property or rights that the
5holders of such shares are to receive in exchange for or
6upon conversion of such shares, and the surrender of any
7certificates evidencing them, which securities or
8obligations, if any, of any other person or cash,
9property or rights may be in addition to or in lieu of
10shares or other securities or obligations of one or more
11of the resulting corporations.
12(ii) The disposition of the shares and other
13securities or obligations, if any, of the new corporation
14or corporations resulting from the division.
15(2) A statement that the dividing corporation will, or
16will not, survive the division.
17(3) Any changes desired to be made in the articles of
18the surviving corporation, if there be one, including a
19restatement of the articles.
20(4) The articles of incorporation required by subsection
21(b).
22(5) Any provisions desired providing special treatment
23of shares held by any shareholder or group of shareholders as
24authorized by, and subject to the provisions of, section 1906
25(relating to special treatment of holders of shares of same
26class or series).
27(6) Such other provisions as are deemed desirable.
28(b) Articles of new corporations.--There shall be included
29in or annexed to the plan of division:
30(1) Articles of incorporation, which shall contain all
1of the statements required by this subpart to be set forth in
2restated articles, for each of the new domestic business
3corporations, if any, resulting from the division.
4(2) Articles of incorporation, certificates of
5incorporation or other charter documents for each of the new
6foreign business corporations, if any, resulting from the
7division.
8(c) Proposal and adoption.--Except as otherwise provided in
9section 1953 (relating to division without shareholder
10approval), the plan of division shall be proposed and adopted,
11and may be amended after its adoption and terminated, by a
12domestic business corporation in the manner provided for the
13proposal, adoption, amendment and termination of a plan of
14merger in Subchapter C (relating to merger, consolidation, share
15exchanges and sale of assets), except section 1924(b) (relating
16to adoption by board of directors), or, if the dividing
17corporation is a foreign business corporation, in accordance
18with the laws of the jurisdiction in which it is incorporated.
19There shall be included in, or enclosed with, the notice of the
20meeting of shareholders to act on the plan a copy or a summary
21of the plan and, if Subchapter D of Chapter 15 (relating to
22dissenters rights) is applicable, a copy of the subchapter and
23of subsection (d).
24(d) Dissenters rights in division.--
25(1) Except as otherwise provided in paragraph (2), any
26shareholder of a business corporation that adopts a plan of
27division who objects to the plan and complies with the
28provisions of Subchapter D of Chapter 15 shall be entitled to
29the rights and remedies of dissenting shareholders therein
30provided, if any. See section 1906(c) (relating to dissenters
1rights upon special treatment).
2(2) Except as otherwise provided pursuant to section
31571(c) (relating to grant of optional dissenters rights),
4Subchapter D of Chapter 15 shall not apply to any of the
5shares of a corporation that is a party to a plan of division
6pursuant to section 1953 (relating to division without
7shareholder approval).
8(f) Action by holders of preferred or special shares.--If
9the dividing corporation has outstanding any shares of any
10preferred or special class or series, the holders of the
11outstanding shares of the class or series shall be entitled to
12vote as a class on the plan regardless of any limitations stated
13in the articles or bylaws on the voting rights of the class or
14series if the plan of division:
15(1) provides that the dividing corporation will not
16survive the division; or
17(2) amends the articles or bylaws of the surviving
18corporation in a manner that would entitle the holders of
19such preferred or special shares to a class vote thereon
20under the articles, bylaws or section 1914(b) (relating to
21statutory voting rights).
22(g) Rights of holders of indebtedness.--If any debt
23securities, notes or similar evidences of indebtedness for money
24borrowed, whether secured or unsecured, indentures or other
25contracts were issued, incurred or executed by the dividing
26corporation before August 21, 2001, and have not been amended
27subsequent to that date, the liability of the dividing
28corporation thereunder shall not be affected by the division nor
29shall the rights of the obligees thereunder be impaired by the
30division, and each of the resulting corporations may be
1proceeded against or substituted in place of the dividing
2corporation as joint and several obligors on such liability,
3regardless of any provision of the plan of division apportioning
4the liabilities of the dividing corporation.
5(h) Special requirements.--If any provision of the articles
6or bylaws of a dividing domestic business corporation adopted
7before October 1, 1989, requires for the proposal or adoption of
8a plan of merger, consolidation or asset transfer a specific
9number or percentage of votes of directors or shareholders or
10other special procedures, the plan of division shall not be
11proposed or adopted by the directors or (if adoption by the
12shareholders is otherwise required by this subchapter) adopted
13by the shareholders without that number or percentage of votes
14or compliance with the other special procedures.
15(i) Reference to outside facts.--Any of the terms of a plan
16of division may be made dependent upon facts ascertainable
17outside of the plan if the manner in which the facts will
18operate upon the terms of the plan is set forth in the plan.
19Such facts may include, without limitation, actions or events
20within the control of or determinations made by the dividing
21corporation or a representative of the dividing corporation.
22§ 1953. Division without shareholder approval.
23(a) General rule.--Unless otherwise restricted by its bylaws
24or required by section 1952(f) (relating to action by holders of
25preferred or special shares), a plan of division that does not
26alter the state of incorporation of a business corporation,
27provide for special treatment nor amend in any respect the
28provisions of its articles (except amendments which under
29section 1914(c) (relating to adoption by board of directors) may
30be made without shareholder action) shall not require the
1approval of the shareholders of the corporation if:
2(1) the dividing corporation has only one class of
3shares outstanding and the shares and other securities, if
4any, of each corporation resulting from the plan are
5distributed pro rata to the shareholders of the dividing
6corporation;
7(2) the dividing corporation survives the division and
8all the shares and other securities and obligations, if any,
9of all new corporations resulting from the plan are owned
10solely by the surviving corporation; or
11(3) the allocation of assets among the resulting
12corporations effected by the division, if effected by means
13of a sale, lease, exchange or other disposition, would not
14require the approval of shareholders under section 1932(b)
15(relating to shareholder approval required).
16(b) Limitation.--A plan of division adopted by the board of
17directors under this section without the approval of the
18shareholders shall not, by itself, create or impair any rights
19or obligations on the part of any person under section 2538
20(relating to approval of transactions with interested
21shareholders) or under Subchapters E (relating to control
22transactions), F (relating to business combinations), G
23(relating to control-share acquisitions), H (relating to
24disgorgement by certain controlling shareholders following
25attempts to acquire control), I (relating to severance
26compensation for employees terminated following certain control-
27share acquisitions) and J (relating to business combination
28transactions - labor contracts) of Chapter 25, nor shall it
29change the standard of care applicable to the directors under
30Subchapter B of Chapter 17 (relating to fiduciary duty).
1§ 1954. Articles of division.
2Upon the adoption of a plan of division by the corporation
3desiring to divide, as provided in this subchapter, articles of
4division shall be executed by the corporation and shall, subject
5to section 109 (relating to name of commercial registered office
6provider in lieu of registered address), set forth:
7(1) The name and the location of the registered office,
8including street and number, if any, of the dividing domestic
9business corporation or, in the case of a dividing foreign
10business corporation, the name of the corporation and the
11jurisdiction in which it is incorporated, together with
12either:
13(i) If a qualified foreign business corporation, the
14address, including street and number, if any, of its
15registered office in this Commonwealth.
16(ii) If a nonqualified foreign business corporation,
17the address, including street and number, if any, of its
18principal office under the laws of that jurisdiction.
19(2) The statute under which the dividing corporation was
20incorporated and the date of incorporation.
21(3) A statement that the dividing corporation will, or
22will not, survive the division.
23(4) The name and the address, including street and
24number, if any, of the registered office of each new domestic
25business corporation or qualified foreign business
26corporation resulting from the division.
27(5) If the plan is to be effective on a specific date,
28the hour, if any, and the month, day and year of the
29effective date.
30(6) The manner in which the plan was adopted by the
1corporation.
2(7) Except as provided in section 1901 (relating to
3omission of certain provisions from filed plans), the plan of
4division.
5§ 1955. Filing of articles of division.
6(a) General rule.--The articles of division, and the
7certificates or statement, if any, required by section 139
8(relating to tax clearance of certain fundamental transactions)
9shall be filed in the Department of State.
10(b) Cross references.--See sections 134 (relating to
11docketing statement) and 135 (relating to requirements to be met
12by filed documents).
13§ 1956. Effective date of division.
14Upon the filing of articles of division in the Department of
15State or upon the effective date specified in the plan of
16division, whichever is later, the division shall become
17effective. The division of a domestic business corporation into
18one or more foreign business corporations or the division of a
19foreign business corporation shall be effective according to the
20laws of the jurisdictions where the foreign corporations are or
21are to be incorporated, but not until articles of division have
22been adopted and filed as provided in this subchapter.
23§ 1957. Effect of division.
24(a) Multiple resulting corporations.--Upon the division
25becoming effective, the dividing corporation shall be subdivided
26into the distinct and independent resulting corporations named
27in the plan of division and, if the dividing corporation is not
28to survive the division, the existence of the dividing
29corporation shall cease. The resulting corporations, if they are
30domestic business corporations, shall not thereby acquire
1authority to engage in any business or exercise any right that a
2corporation may not be incorporated under this subpart to engage
3in or exercise. Any resulting foreign business corporation that
4is stated in the articles of division to be a qualified foreign
5business corporation shall be a qualified foreign business
6corporation under Article D (relating to foreign business
7corporations), and the articles of division shall be deemed to
8be the application for a certificate of authority and the
9certificate of authority issued thereon of the corporation.
10(b) Property rights; allocations of assets and
11liabilities.--
12(1) (i) All the property, real, personal and mixed, and
13franchises of the dividing corporation, and all debts due
14on whatever account to it, including subscriptions for
15shares and other choses in action belonging to it, shall
16(except as otherwise provided in paragraph (2)), to the
17extent allocations of assets are contemplated by the plan
18of division, be deemed without further action to be
19allocated to and vested in the resulting corporations on
20such a manner and basis and with such effect as is
21specified in the plan, or per capita among the resulting
22corporations, as tenants in common, if no specification
23is made in the plan, and the title to any real estate, or
24interest therein, vested in any of the corporations shall
25not revert or be in any way impaired by reason of the
26division.
27(ii) Upon the division becoming effective, the
28resulting corporations shall each thenceforth be
29responsible as separate and distinct corporations only
30for such liabilities as each corporation may undertake or
1incur in its own name but shall be liable for the
2liabilities of the dividing corporation in the manner and
3on the basis provided in subparagraphs (iv) and (v).
4(iii) Liens upon the property of the dividing
5corporation shall not be impaired by the division.
6(iv) Except as provided in section 1952(g) (relating
7to proposal and adoption of plan of division), to the
8extent allocations of liabilities are contemplated by the
9plan of division, the liabilities of the dividing
10corporation shall be deemed without further action to be
11allocated to and become the liabilities of the resulting
12corporations on such a manner and basis and with such
13effect as is specified in the plan; and one or more, but
14less than all, of the resulting corporations shall be
15free of the liabilities of the dividing corporation to
16the extent, if any, specified in the plan, if in either
17case:
18(A) no fraud on minority shareholders or
19shareholders without voting rights or violation of
20law shall be effected thereby; and
21(B) the plan does not constitute a fraudulent
22transfer under 12 Pa.C.S. Ch. 51 (relating to
23fraudulent transfers).
24(v) If the conditions in subparagraph (iv) for
25freeing one or more of the resulting corporations from
26the liabilities of the dividing corporation or for
27allocating some or all of the liabilities of the dividing
28corporation are not satisfied, the liabilities of the
29dividing corporation as to which those conditions are not
30satisfied shall not be affected by the division nor shall
1the rights of creditors thereunder be impaired by the
2division and any claim existing or action or proceeding
3pending by or against the corporation with respect to
4those liabilities may be prosecuted to judgment as if the
5division had not taken place, or the resulting
6corporations may be proceeded against or substituted in
7place of the dividing corporation as joint and several
8obligors on those liabilities, regardless of any
9provision of the plan of division apportioning the
10liabilities of the dividing corporation.
11(vi) The conditions in subparagraph (iv) for freeing
12one or more of the resulting corporations from the
13liabilities of the dividing corporation and for
14allocating some or all of the liabilities of the dividing
15corporation shall be conclusively deemed to have been
16satisfied if the plan of division has been approved by
17the Department of Banking, the Insurance Department or
18the Pennsylvania Public Utility Commission in a final
19order issued after August 21, 2001, that has become not
20subject to further appeal.
21(2) (i) The allocation of any fee or freehold interest
22or leasehold having a remaining term of 30 years or more
23in any tract or parcel of real property situate in this
24Commonwealth owned by a dividing corporation (including
25property owned by a foreign business corporation dividing
26solely under the law of another jurisdiction) to a new
27corporation resulting from the division shall not be
28effective until one of the following documents is filed
29in the office for the recording of deeds of the county,
30or each of them, in which the tract or parcel is
1situated:
2(A) A deed, lease or other instrument of
3confirmation describing the tract or parcel.
4(B) A duly executed duplicate original copy of
5the articles of division.
6(C) A copy of the articles of division certified
7by the Department of State.
8(D) A declaration of acquisition setting forth
9the value of real estate holdings in such county of
10the corporation as an acquired company.
11(ii) The provisions of 75 Pa.C.S. § 1114 (relating
12to transfer of vehicle by operation of law) shall not be
13applicable to an allocation of ownership of any motor
14vehicle, trailer or semitrailer to a new corporation
15under this section or under a similar law of any other
16jurisdiction but any such allocation shall be effective
17only upon compliance with the requirements of 75 Pa.C.S.
18§ 1116 (relating to issuance of new certificate following
19transfer).
20(3) It shall not be necessary for a plan of division to
21list each individual asset or liability of the dividing
22corporation to be allocated to a new corporation so long as
23those assets and liabilities are described in a reasonable
24manner.
25(4) Each new corporation shall hold any assets and
26liabilities allocated to it as the successor to the dividing
27corporation, and those assets and liabilities shall not be
28deemed to have been assigned to the new corporation in any
29manner, whether directly or indirectly or by operation of
30law.
1(c) Taxes.--Any taxes, interest, penalties and public
2accounts of the Commonwealth claimed against the dividing
3corporation that are settled, assessed or determined prior to or
4after the division shall be the liability of any of the
5resulting corporations and, together with interest thereon,
6shall be a lien against the franchises and property, both real
7and personal, of all the corporations. Upon the application of
8the dividing corporation, the Department of Revenue, with the
9concurrence of the Office of Employment Security of the
10Department of Labor and Industry, shall release one or more, but
11less than all, of the resulting corporations from liability and
12liens for all taxes, interest, penalties and public accounts of
13the dividing corporation due the Commonwealth for periods prior
14to the effective date of the division if those departments are
15satisfied that the public revenues will be adequately secured.
16(d) Articles of surviving corporation.--The articles of
17incorporation of the surviving corporation, if there be one,
18shall be deemed to be amended to the extent, if any, that
19changes in its articles are stated in the plan of division.
20(e) Articles of new corporations.--The statements that are
21set forth in the plan of division with respect to each new
22domestic business corporation and that are required or permitted
23to be set forth in restated articles of incorporation of
24corporations incorporated under this subpart, or the articles of
25incorporation of each new corporation set forth therein, shall
26be deemed to be the articles of incorporation of each new
27corporation.
28(f) Directors and officers.--Unless otherwise provided in
29the plan, the directors and officers of the dividing corporation
30shall be the initial directors and officers of each of the
1resulting corporations.
2(g) Disposition of shares.--Unless otherwise provided in the
3plan, the shares and other securities or obligations, if any, of
4each new corporation resulting from the division shall be
5distributable to:
6(1) the surviving corporation, if the dividing
7corporation survives the division; or
8(2) the holders of the common or other residuary shares
9of the dividing corporation pro rata, in any other case.
10(h) Conflict of laws.--It is the intent of the General
11Assembly that:
12(1) The effect of a division of a domestic business
13corporation shall be governed solely by the laws of this
14Commonwealth and any other jurisdiction under the laws of
15which any of the resulting corporations is incorporated.
16(2) The effect of a division on the assets and
17liabilities of the dividing corporation shall be governed
18solely by the laws of this Commonwealth and any other
19jurisdiction under the laws of which any of the resulting
20corporations is incorporated.
21(3) The validity of any allocations of assets or
22liabilities by a plan of division of a domestic business
23corporation, regardless of whether or not any of the new
24corporations is a foreign business corporation, shall be
25governed solely by the laws of this Commonwealth.
26(4) In addition to the express provisions of this
27subsection, this subchapter shall otherwise generally be
28granted the protection of full faith and credit under the
29Constitution of the United States.
30SUBCHAPTER E
1CONVERSION
2§ 1961. Conversion authorized.
3(a) General rule.--Any business corporation may, in the
4manner provided in this subchapter, be converted into a
5nonprofit corporation, designated in this subchapter as the
6resulting corporation.
7(b) Exceptions.--This subchapter shall not authorize any
8conversion involving:
9(1) Beneficial, benevolent, fraternal or fraternal
10benefit societies having a lodge system and a representative
11form of government, or transacting any type of insurance
12whatsoever.
13(2) Any corporation that by the laws of this
14Commonwealth is subject to the supervision of the Department
15of Banking, the Insurance Department or the Pennsylvania
16Public Utility Commission, unless the agency expressly
17approves the transaction in writing.
18§ 1962. Proposal and adoption of plan of conversion.
19(a) Preparation of plan.--A plan of conversion shall be
20prepared, setting forth:
21(1) The terms and conditions of the conversion.
22(2) A restatement of the articles of the resulting
23corporation, which articles shall comply with the
24requirements of this part relating to nonprofit corporations.
25(3) Any provisions desired providing special treatment
26of shares held by any shareholder or group of shareholders as
27authorized by, and subject to the provisions of, section 1906
28(relating to special treatment of holders of shares of same
29class or series).
30(4) Such other provisions as are deemed desirable.
1(b) Proposal and adoption.--The plan of conversion shall be
2proposed and adopted, and may be amended after its adoption and
3terminated, by the business corporation in the manner provided
4for the proposal, adoption, amendment and termination of a plan
5of merger in Subchapter C (relating to merger, consolidation,
6share exchanges and sale of assets), except section 1924(b)
7(relating to adoption by board of directors). There shall be
8included in, or enclosed with, the notice of meeting of
9shareholders of the business corporation that will act upon the
10plan a copy or a summary of the plan and of Subchapter D of
11Chapter 15 (relating to dissenters rights) and of subsection
12(c).
13(c) Dissenters rights in conversion.--Any shareholder of a
14business corporation that adopts a plan of conversion into a
15nonprofit corporation who objects to the plan of conversion and
16complies with the provisions of Subchapter D of Chapter 15 shall
17be entitled to the rights and remedies of dissenting
18shareholders therein provided.
19(d) Reference to outside facts.--Any of the terms of a plan
20of conversion may be made dependent upon facts ascertainable
21outside of the plan if the manner in which the facts will
22operate upon the terms of the plan is set forth in the plan.
23Such facts may include, without limitation, actions or events
24within the control of or determinations made by the corporation
25or a representative of the corporation.
26§ 1963. Articles of conversion.
27Upon the adoption of a plan of conversion by the business
28corporation desiring to convert, as provided in this subchapter,
29articles of conversion shall be executed by the corporation and
30shall set forth:
1(1) The name of the corporation and, subject to section
2109 (relating to name of commercial registered office
3provider in lieu of registered address), the address,
4including street and number, if any, of its registered
5office.
6(2) The statute under which the corporation was
7incorporated and the date of incorporation.
8(3) If the plan is to be effective on a specified date,
9the hour, if any, and the month, day and year of the
10effective date.
11(4) The manner in which the plan was adopted by the
12corporation.
13(5) Except as provided in section 1901 (relating to
14omission of certain provisions from filed plans), the plan of
15conversion.
16§ 1964. Filing of articles of conversion.
17(a) General rule.--The articles of conversion shall be filed
18in the Department of State.
19(b) Cross reference.--See section 134 (relating to docketing
20statement).
21§ 1965. Effective date of conversion.
22Upon the filing of articles of conversion in the Department
23of State or upon the effective date specified in the plan of
24conversion, whichever is later, the conversion shall become
25effective.
26§ 1966. Effect of conversion.
27Upon the conversion becoming effective, the converting
28business corporation shall be deemed to be a nonprofit
29corporation subject to the provisions of this part relating to
30nonprofit corporations for all purposes, shall cease to be a
1business corporation and shall not thereafter operate in any
2manner resulting in pecuniary profit, incidental or otherwise,
3to its members or shareholders. The corporation shall remain
4liable for all existing obligations, public or private, and
5taxes due the Commonwealth or any other taxing authority for
6periods prior to the effective date of the conversion and, as a
7nonprofit corporation, it shall continue to be entitled to all
8assets theretofore pertaining to it as a business corporation.
9§ 1980. Dissolution by domestication.
10Whenever a domestic business corporation has domesticated
11itself under the laws of another jurisdiction by action similar
12to that provided by section 4161 (relating to domestication) and
13has authorized that action by the vote required by this
14subchapter for the approval of a proposal that the corporation
15dissolve voluntarily, the corporation may surrender its charter
16under the laws of this Commonwealth by filing in the Department
17of State articles of dissolution under this subchapter
18containing the statement specified by section 1977(b)(1) through
19(4) (relating to articles of dissolution). If the corporation as
20domesticated in the other jurisdiction qualifies to do business
21in this Commonwealth either prior to or simultaneously with the
22filing of the articles of dissolution under this section, the
23corporation shall not be required to file with the articles of
24dissolution the tax clearance certificates that would otherwise
25be required by section 139 (relating to tax clearance of certain
26fundamental transactions).]
27Section 24. Sections 2121, 2501(c), 2521, 2538(a)(1) and (2)
28and (b), 2539, 2721, 2921(b), 3301(c) and 3304(b) of Title 15
29are amended to read:
30§ 2121. Corporate name of nonstock corporations.
1(a) General rule.--The corporate name of a nonstock
2corporation may contain the word "mutual."
3(b) Insurance names.--See section [1303(c)(1)(iii) (relating
4to corporate name)] 202(c)(1)(iii) (relating to requirements for
5names generally).
6§ 2501. Application and effect of chapter.
7* * *
8(c) Effect of a contrary provision of the articles.--
9(1) [The] Except as provided in section 2521 (relating
10to call of special meetings of shareholders), the articles of
11a registered corporation may provide either expressly or by
12necessary implication that any one or more of the provisions
13of Subchapters B (relating to powers, duties and safeguards),
14C (relating to directors and shareholders) and D (relating to
15fundamental changes generally) shall not be applicable in
16whole or in part to the corporation.
17(2) The articles of a registered corporation may provide
18that any one or more of the provisions of Subchapter E
19(relating to control transactions) and following of this
20chapter shall not be applicable in whole or in part to the
21corporation only if, to the extent and in the manner,
22expressly permitted by the subchapter the applicability of
23which is so affected. Where any provision of Subchapter E and
24following of this chapter permits the applicability of a
25subchapter to be varied by a provision of the articles, the
26applicability may be varied by an amendment of the articles
27only if, to the extent and in the manner, expressly permitted
28by the subchapter the applicability of which is so affected.
29* * *
30§ 2521. Call of special meetings of shareholders.
1(a) General rule.--The shareholders of a registered
2corporation shall not be entitled by statute to call a special
3meeting of the shareholders.
4(b) Exception.--Subsection (a) shall not apply to the call
5of a special meeting by an interested shareholder (as defined in
6section 2553 (relating to interested shareholder)) for the
7purpose of approving a business combination under section
82555(3) or (4) (relating to requirements relating to certain
9business combinations).
10(c) Contrary articles provision.--A provision of the
11articles of a registered corporation described in section
122502(1) (relating to registered corporation status) adopted
13after {the Legislative Reference Bureau shall insert here the
14effective date of this amendment} may not provide that a special
15meeting may be called by less than 25% of the votes that all
16shareholders would be entitled to cast at the meeting.
17§ 2538. Approval of transactions with interested shareholders.
18(a) General rule.--The following transactions shall require
19the affirmative vote of the shareholders entitled to cast at
20least a majority of the votes that all shareholders other than
21the interested shareholder are entitled to cast with respect to
22the transaction, without counting the vote of the interested
23shareholder:
24(1) Any transaction authorized under Subchapter C of
25Chapter 19 (relating to merger[,consolidation, share
26exchanges] liabilities and sale of assets) or Subchapter C
27(relating to merger) or D (relating to interest exchange) of
28Chapter 3 between a registered corporation or subsidiary
29thereof and a shareholder of the registered corporation.
30(2) Any transaction authorized under Subchapter [D] F of
1Chapter [19] 3 (relating to division) in which the interested
2shareholder receives a disproportionate amount of any of the
3shares or other securities of any corporation surviving or
4resulting from the plan of division.
5* * *
6(b) Exceptions.--Subsection (a) shall not apply to a
7transaction:
8(1) that has been approved by a majority vote of the
9board of directors without counting the vote of directors
10who:
11(i) are directors or officers of, or have a material
12equity interest in, the interested shareholder; or
13(ii) were nominated for election as a director by
14the interested shareholder, and first elected as a
15director, within 24 months of the date of the vote on the
16proposed transaction;
17(2) in which the consideration to be received by the
18shareholders for shares of any class of which shares are
19owned by the interested shareholder is not less than the
20highest amount paid by the interested shareholder in
21acquiring shares of the same class; or
22(3) effected pursuant to section [1924(b)(1)(ii)
23(relating to adoption by board of directors)] 321(d)(1)(ii)
24(relating to approval by business corporation).
25* * *
26§ 2539. Adoption of plan of merger by board of directors.
27Section [1924(b)(1)(ii) (relating to adoption by board of
28directors)] 321(d)(1)(ii) (relating to approval by business
29corporation) shall be applicable to a plan relating to a merger
30[or consolidation] to which a registered corporation described
1in section 2502(1)(i) (relating to registered corporation
2status) is a party only if the plan:
3(1) has been approved by the board of directors of the
4registered corporation; and
5(2) is consistent with the requirements, if applicable,
6of Subchapter F (relating to business combinations).
7§ 2721. Bylaw and fundamental change procedures.
8So long as a business corporation is a management corporation
9subject to this chapter:
10(1) The board of directors shall have the full authority
11vested by this subpart in the shareholders to amend the
12articles under section 2704(b) (relating to procedure) to
13renew the election of the corporation to be subject to this
14chapter and to adopt or change the bylaws, and a bylaw
15adopted by the board of directors pursuant to this section
16may continue in effect as long as the corporation remains
17subject to this chapter.
18(2) [An amendment or plan shall not be adopted under
19Chapter 19 (relating to fundamental changes), and a bylaw
20shall not be adopted or changed by the shareholders, without
21the approval of the board of directors.] None of the
22following shall be adopted or changed by the shareholders
23without the approval of the board of directors:
24(i) a plan under Chapter 3 (relating to entity
25transactions);
26(ii) an amendment of the articles;
27(iii) an amendment, adoption or repeal of a bylaw;
28(iv) a plan of asset transfer; or
29(v) a resolution recommending dissolution.
30(3) In the case of a corporation that in the ordinary
1course of business redeems all outstanding shares at the
2option of the shareholder at the net asset value or at
3another agreed method or amount of value thereof, [an
4amendment or plan under Chapter 19] a plan under Chapter 3,
5an amendment of the articles or a plan of asset transfer
6under section 1932 (relating to voluntary transfer of
7corporate assets) shall not require the approval of the
8shareholders of the corporation for adoption by the
9corporation.
10§ 2921. Corporate name.
11* * *
12(b) Additional names permitted.--The provisions of section
13[1303(a) (relating to corporate name)] 202 (relating to
14requirements for names generally) shall not prohibit the use of
15a name of a professional corporation if the name contains and is
16restricted to the name or the last name of one or more of the
17present, prospective or former shareholders or of individuals
18who were associated with a predecessor or whose individual name
19or names appeared in the name of the predecessor. The name may
20also contain:
21(1) the word "and" or any symbol or substitute therefor;
22(2) the word "associates";
23(3) the term "P.C."; or
24(4) any or all of the words or terms in paragraphs (1),
25(2) and (3).
26§ 3301. Application and effect of chapter.
27* * *
28(c) Laws applicable to benefit corporations.--Except as
29otherwise provided in this chapter, Part I (relating to
30preliminary provisions) and this subpart shall apply generally
1to benefit corporations. The specific provisions of this chapter
2shall control over the general provisions of Part I and this
3subpart. A benefit corporation may be simultaneously subject to
4this chapter and one or more other chapters of this article.
5* * *
6§ 3304. Election of benefit corporation status.
7* * *
8(b) Fundamental transactions.--If an association that is not
9a benefit corporation is a party to a merger[, consolidation] or
10division or is the exchanging association in [a share] an
11interest exchange, and the surviving, new or any resulting
12association in the merger, [consolidation,] division or [share]
13interest exchange is to be a benefit corporation, then the plan
14of merger, [consolidation,] division or [share] interest
15exchange shall not be effective unless it is adopted by the
16[corporation] association by at least the minimum status vote.
17Section 25. Sections 4121, 4122 and 4123 of Title 15 are
18repealed:
19[§ 4121. Admission of foreign corporations.
20(a) General rule.--A foreign business corporation, before
21doing business in this Commonwealth, shall procure a certificate
22of authority to do so from the Department of State, in the
23manner provided in this subchapter. A foreign business
24corporation shall not be denied a certificate of authority by
25reason of the fact that the laws of the jurisdiction governing
26its incorporation and internal affairs differ from the laws of
27this Commonwealth.
28(b) Qualification under former statutes.--If a foreign
29corporation for profit was on March 19, 1966, admitted to do
30business in this Commonwealth by the filing of a power of
1attorney and statement under the act of June 8, 1911 (P.L.710,
2No.283), the power of attorney and statement shall be deemed an
3approved application for a certificate of authority issued under
4this subchapter and the corporation shall be deemed a holder of
5the certificate. The corporation shall include in its initial
6application, if any, for an amended certificate of authority
7under this subchapter the information required by this
8subchapter to be set forth in an application for a certificate
9of authority. A certificate of authority issued under the former
10provisions of the Business Corporation Law of 1933 shall be
11deemed to be issued under this subchapter, and the certificate
12of authority shall be deemed not to contain any reference to the
13kind of business that the corporation proposes to do in this
14Commonwealth.
15(c) Foreign insurance corporations.--A foreign insurance
16corporation shall not be required to procure a certificate of
17authority under this subchapter.
18§ 4122. Excluded activities.
19(a) General rule.--Without excluding other activities that
20may not constitute doing business in this Commonwealth, a
21foreign business corporation shall not be considered to be doing
22business in this Commonwealth for the purposes of this
23subchapter by reason of carrying on in this Commonwealth any one
24or more of the following acts:
25(1) Maintaining or defending any action or
26administrative or arbitration proceeding or effecting the
27settlement thereof or the settlement of claims or disputes.
28(2) Holding meetings of its directors or shareholders or
29carrying on other activities concerning its internal affairs.
30(3) Maintaining bank accounts.
1(4) Maintaining offices or agencies for the transfer,
2exchange and registration of its securities or appointing and
3maintaining trustees or depositaries with relation to its
4securities.
5(5) Effecting sales through independent contractors.
6(6) Soliciting or procuring orders, whether by mail or
7through employees or agents or otherwise, and maintaining
8offices therefor, where the orders require acceptance without
9this Commonwealth before becoming binding contracts.
10(7) Creating as borrower or lender, acquiring or
11incurring, obligations or mortgages or other security
12interests in real or personal property.
13(8) Securing or collecting debts or enforcing any rights
14in property securing them.
15(9) Transacting any business in interstate or foreign
16commerce.
17(10) Conducting an isolated transaction completed within
18a period of 30 days and not in the course of a number of
19repeated transactions of like nature.
20(11) Inspecting, appraising and acquiring real estate
21and mortgages and other liens thereon and personal property
22and security interests therein, and holding, leasing,
23conveying and transferring them, as fiduciary or otherwise.
24(b) Exceptions.--The specification of activities in
25subsection (a) does not establish a standard for activities that
26may subject a foreign business corporation to:
27(1) Service of process under any statute or general
28rule.
29(2) Taxation by the Commonwealth or any political
30subdivision thereof.
1§ 4123. Requirements for foreign corporation names.
2(a) General rule.--The Department of State shall not issue a
3certificate of authority to any foreign business corporation
4that, except as provided in subsection (b), has a name that is
5rendered unavailable for use by a domestic business corporation
6by any provision of section 1303(a), (b) or (c) (relating to
7corporate name), except subsection (c)(1)(ii) thereof (relating
8to banking names).
9(b) Exceptions.--
10(1) The provisions of section 1303(b) (relating to
11duplicate use of names) shall not prevent the issuance of a
12certificate of authority to a foreign business corporation
13setting forth a name that is not distinguishable upon the
14records of the department from the name of any other domestic
15or foreign corporation for profit or corporation not-for-
16profit, or of any corporation or other association then
17registered under 54 Pa.C.S. Ch. 5 (relating to corporate and
18other association names) or to any name reserved or
19registered as provided in this part, if the foreign business
20corporation applying for a certificate of authority files in
21the department a resolution of its board of directors
22adopting a fictitious name for use in transacting business in
23this Commonwealth, which fictitious name is distinguishable
24upon the records of the department from the name of the other
25corporation or other association or from any name reserved or
26registered as provided in this part and that is otherwise
27available for use by a domestic business corporation.
28(2) The provisions of section 1303(c) (relating to
29required approvals or conditions) shall not prevent the
30issuance of a certificate of authority to a foreign business
1corporation setting forth a name that is prohibited by that
2subsection if the foreign business corporation applying for a
3certificate of authority files in the department a resolution
4of its board of directors adopting a fictitious name for use
5in transacting business in this Commonwealth that is
6available for use by a domestic business corporation.]
7Section 26. Section 4124 of Title 15 is amended to read:
8§ 4124. [Application for a certificate of authority.]
9Advertisement of registration to do business.
10[(a) General rule.--An application for a certificate of
11authority shall be executed by the foreign business corporation
12and shall set forth:
13(1) The name of the corporation.
14(2) The name of the jurisdiction under the laws of which
15it is incorporated.
16(3) The address, including street and number, if any, of
17its principal office under the laws of the jurisdiction in
18which it is incorporated.
19(4) Subject to section 109 (relating to name of
20commercial registered office provider in lieu of registered
21address), the address, including street and number, if any,
22of its proposed registered office in this Commonwealth.
23(5) A statement that it is a corporation incorporated
24for a purpose or purposes involving pecuniary profit,
25incidental or otherwise.
26(b) Advertisement.--]A foreign business corporation shall
27officially publish notice of its intention to [apply or its
28application for a certificate of authority] register to do
29business or its registration to do business in this Commonwealth
30under Chapter 4 (relating to foreign associations). The notice
1may appear prior to or after the day on which [application is
2made to the Department of State] a registration statement is
3delivered to the department for filing and shall set forth
4briefly:
5(1) A statement that the corporation will [apply or has
6applied for a certificate of authority under the provisions
7of the Business Corporation Law of 1988] register or has
8registered to do business in this Commonwealth under Chapter
94.
10(2) The name of the corporation and [of the jurisdiction
11under the laws of which it is incorporated] its jurisdiction
12of formation.
13(3) The address, including street and number, if any, of
14its principal office under the laws of [the jurisdiction in
15which it is incorporated] its jurisdiction of formation.
16(4) Subject to section 109, the address, including
17street and number, if any, of its proposed registered office
18in this Commonwealth.
19(c) [Filing.--The application for a certificate of authority
20shall be filed in the Department of State.] (Reserved).
21(d) [Cross reference.--See section 134 (relating to
22docketing statement).] (Reserved).
23Section 27. Sections 4125, 4126, 4127, 4128 of Title 15 are
24repealed:
25[§ 4125. Issuance of certificate of authority.
26Upon the filing of the application for a certificate of
27authority, the foreign business corporation shall be deemed to
28hold a certificate of authority to do business in this
29Commonwealth.
30§ 4126. Amended certificate of authority.
1(a) General rule.--After receiving a certificate of
2authority, a qualified foreign business corporation may, subject
3to the provisions of this subchapter, change or correct any of
4the information set forth in its application for a certificate
5of authority or previous filings under this section by filing in
6the Department of State an application for an amended
7certificate of authority. The application shall be executed by
8the corporation and shall state:
9(1) The name under which the applicant corporation
10currently holds a certificate of authority to do business in
11this Commonwealth.
12(2) Subject to section 109 (relating to name of
13commercial registered office provider in lieu of registered
14address), the address, including street and number, if any,
15of its registered office in this Commonwealth.
16(3) The information to be changed or corrected.
17(4) If the application reflects a change in the name of
18the corporation, the application shall include a statement
19that either:
20(i) the change of name reflects a change effected in
21the jurisdiction of incorporation; or
22(ii) documents complying with section 4123(b)
23(relating to exceptions) accompany the application.
24(b) Issuance of amended certificate of authority.--Upon the
25filing of the application, the applicant corporation shall be
26deemed to hold an amended certificate of authority.
27(c) Cross references.--See sections 134 (relating to
28docketing statement) and 135 (relating to requirements to be met
29by filed documents).
30§ 4127. Merger, consolidation or division of qualified foreign
1corporations.
2(a) General rule.--Whenever a qualified foreign business
3corporation is a nonsurviving party to a statutory merger,
4consolidation or division permitted by the laws of the
5jurisdiction under which it is incorporated, the corporation or
6other association surviving the merger, or the new corporation
7or other association resulting from the consolidation or
8division, as the case may be, shall file in the department a
9statement of merger, consolidation or division, which shall be
10executed by the surviving or new corporation or other
11association and shall set forth:
12(1) The name of each nonsurviving qualified foreign
13business corporation.
14(2) The name of the jurisdictions under the laws of
15which each nonsurviving qualified foreign business
16corporation was incorporated.
17(3) The date on which each nonsurviving qualified
18foreign business corporation received a certificate of
19authority to do business in this Commonwealth.
20(4) A statement that the corporate existence of each
21nonsurviving qualified foreign business corporation has been
22terminated by merger, consolidation or division, as the case
23may be.
24(5) In the case of a merger, consolidation or division
25in which any of the new or resulting associations is a
26corporation, or if the surviving corporation in a merger was
27a nonqualified foreign business corporation prior to the
28merger, the statements on the part of the surviving or each
29new or resulting corporation required by section 4124(a)
30(relating to application for a certificate of authority).
1(b) Effect of filing.--The filing of the statement shall
2operate, as of the effective date of the merger, consolidation
3or division, to cancel the certificate of authority of each
4nonsurviving constituent corporation that was a qualified
5foreign business corporation and to qualify the surviving, new
6or resulting corporations, under this subchapter. If the
7surviving, new or resulting corporations do not desire to
8continue as qualified foreign business corporations, they may
9thereafter withdraw in the manner provided by section 4129
10(relating to application for termination of authority).
11(c) Surviving qualified foreign corporations.--It shall not
12be necessary for a surviving corporation that was a qualified
13foreign business corporation to effect any filing under this
14subchapter with respect to a merger or division or to procure an
15amended certificate of authority to do business in this
16Commonwealth unless the name of the corporation is changed by
17the merger or division.
18(d) Cross references.--See sections 134 (relating to
19docketing statement) and 135 (relating to requirements to be met
20by filed documents).
21§ 4128. Revocation of certificate of authority.
22(a) General rule.--Whenever the Department of State finds
23that a qualified foreign business corporation has failed to
24secure an amended certificate of authority as required by this
25subchapter after changing its name, or has failed or refused to
26appear by its proper representatives, or otherwise to comply
27with any subpoena issued by any court having jurisdiction of the
28subject matter, or to produce books, papers, records or
29documents as required by a subpoena, or is violating any of the
30laws of this Commonwealth, or that its articles have been
1revoked or voided by its jurisdiction of incorporation, the
2department shall give notice and opportunity for hearing by
3registered or certified mail to the corporation that the default
4exists and that its certificate of authority, including any
5amendments thereof, will be revoked unless the default is cured
6within 30 days after the mailing of the notice. If the default
7is not cured within the period of 30 days, the department shall
8revoke the certificate of authority, including any amendments
9thereof, of the foreign business corporation. Upon revoking the
10certificate of authority, the department shall mail to the
11corporation, at its registered office in this Commonwealth, a
12certificate of revocation.
13(b) Effect of revocation.--Upon the issuance of the
14certificate of revocation, the authority of the corporation to
15do business in this Commonwealth shall cease, and the
16corporation shall not thereafter do any business in this
17Commonwealth unless it applies for and receives a new
18certificate of authority.
19(c) Exception.--Subsections (a) and (b) shall not apply to a
20foreign insurance corporation.]
21Section 28. Section 4129 of Title 15 is amended to read:
22§ 4129. [Application for] Advertisement of termination of
23[authority] registration to do business.
24[(a) General rule.--Any qualified foreign business
25corporation may withdraw from doing business in this
26Commonwealth and surrender its certificate of authority by
27filing in the Department of State an application for termination
28of authority, executed by the corporation, which shall set
29forth:
30(1) The name of the corporation and, subject to section
1109 (relating to name of commercial registered office
2provider in lieu of registered address), the address,
3including street and number, if any, of its last registered
4office in this Commonwealth.
5(2) The name of the jurisdiction under the laws of which
6it is incorporated.
7(3) The date on which it received a certificate of
8authority to do business in this Commonwealth.
9(4) A statement that it surrenders its certificate of
10authority to do business in this Commonwealth.
11(5) A statement that notice of its intention to withdraw
12from doing business in this Commonwealth was mailed by
13certified or registered mail to each municipal corporation in
14which the registered office or principal place of business of
15the corporation in this Commonwealth is located, and that the
16official publication required by subsection (b) has been
17effected.
18(6) The post office address, including street and
19number, if any, to which process may be sent in an action or
20proceeding upon any liability incurred before the filing of
21the application for termination of authority.]
22(b) Advertisement.--A [qualified] registered foreign
23business corporation shall, before filing [an application for
24termination of authority] a statement under section 415
25(relating to voluntary withdrawal of registration), officially
26publish and mail a notice of its intention to withdraw from
27doing business in this Commonwealth in a manner similar to that
28required by section 1975(b) (relating to notice to creditors and
29taxing authorities). The notice shall set forth [briefly]:
30(1) The name of the corporation and [the jurisdiction
1under the laws of which it is incorporated] its jurisdiction
2of formation.
3(2) The address, including street and number, if any, of
4its principal office under the laws of its jurisdiction of
5[incorporation] formation.
6(3) Subject to section 109, the address, including
7street and number, if any, of its last registered office in
8this Commonwealth.
9(c) [Filing.--The application for termination of authority
10and the certificates or statement required by section 139
11(relating to tax clearance of certain fundamental transactions)
12shall be filed in the department. See section 134 (relating to
13docketing statement).] (Reserved).
14(d) [Effect of filing.--Upon the filing of the application
15for termination of authority, the authority of the corporation
16to do business in this Commonwealth shall cease. The termination
17of authority shall not affect any action or proceeding pending
18at the time thereof or affect any right of action arising with
19respect to the corporation before the filing of the application
20for termination of authority. Process against the corporation in
21an action upon any liability incurred before the filing of the
22application for termination of authority may be served as
23provided in 42 Pa.C.S. Ch. 53 (relating to bases of jurisdiction
24and interstate and international procedure) or as otherwise
25provided or prescribed by law.] (Reserved).
26Section 29. Sections 4130, 4131, 4141, 4142, 4143,4144 and
27Subchapter D of Chapter 41 of Title 15 are repealed:
28[§ 4130. Change of address after withdrawal.
29(a) General rule.--Any foreign business corporation that has
30withdrawn from doing business in this Commonwealth, or its
1successor in interest, may, from time to time, change the
2address to which process may be sent in an action upon any
3liability incurred before the filing of an application for
4termination of authority by filing in the Department of State of
5a statement of change of address by withdrawn corporation
6executed by the corporation, setting forth:
7(1) The name of the withdrawn corporation and, if the
8statement is filed by a successor in interest, the name and
9capacity of the successor.
10(2) The name of the jurisdiction under the laws of which
11the corporation filing the statement is incorporated.
12(3) The former post office address, including street and
13number, if any, of the withdrawn corporation as of record in
14the department.
15(4) The new post office address, including street and
16number, if any, of the withdrawn corporation or its
17successor.
18(b) Cross reference.--See section 134 (relating to docketing
19statement).
20§ 4131. Registration of name.
21(a) General rule.--A nonqualified foreign business
22corporation may register its name under 54 Pa.C.S. Ch. 5
23(relating to corporate and other association names) if the name
24is available for use by a qualified foreign business corporation
25under section 4123 (relating to requirements for foreign
26corporation names), by filing in the Department of State an
27application for registration of name, executed by the
28corporation, which shall set forth:
29(1) The name of the corporation.
30(2) The address, including street and number, if any, of
1the corporation.
2(b) Annual renewal.--A corporation that has in effect a
3registration of its corporate name may renew the registration
4from year to year by annually filing an application for renewal
5setting forth the facts required to be set forth in an original
6application for registration. A renewal application may be filed
7between October 1 and December 31 in each year and shall extend
8the registration for the following calendar year.
9(c) Cross reference.--See section 134 (relating to docketing
10statement).
11§ 4141. Penalty for doing business without certificate of
12authority.
13(a) Right to bring actions or proceedings suspended.--A
14nonqualified foreign business corporation doing business in this
15Commonwealth within the meaning of Subchapter B (relating to
16qualification) shall not be permitted to maintain any action or
17proceeding in any court of this Commonwealth until the
18corporation has obtained a certificate of authority. Nor, except
19as provided in subsection (b), shall any action or proceeding be
20maintained in any court of this Commonwealth by any successor or
21assignee of the corporation on any right, claim or demand
22arising out of the doing of business by the corporation in this
23Commonwealth until a certificate of authority has been obtained
24by the corporation or by a corporation that has acquired all or
25substantially all of its assets.
26(b) Contracts, property and defense against actions
27unaffected.--The failure of a foreign business corporation to
28obtain a certificate of authority to transact business in this
29Commonwealth shall not impair the validity of any contract or
30act of the corporation, shall not prevent the corporation from
1defending any action in any court of this Commonwealth and shall
2not render escheatable any of its real or personal property.
3§ 4142. General powers and duties of qualified foreign
4corporations.
5(a) General rule.--A qualified foreign business corporation,
6so long as its certificate of authority is not revoked, shall
7enjoy the same rights and privileges as a domestic business
8corporation, but no more, and, except as in this subpart
9otherwise provided, shall be subject to the same liabilities,
10restrictions, duties and penalties now in force or hereafter
11imposed upon domestic business corporations, to the same extent
12as if it had been incorporated under this subpart.
13(b) Agricultural lands.--Interests in agricultural land
14shall be subject to the restrictions of, and escheatable as
15provided by, the act of April 6, 1980 (P.L.102, No.39), referred
16to as the Agricultural Land Acquisition by Aliens Law.
17(c) Foreign insurance corporations.--A foreign insurance
18corporation shall, insofar as it is engaged in the business of
19writing insurance or reinsurance as principal, be subject to the
20laws of this Commonwealth regulating the business of insurance
21in lieu of the provisions of subsection (a).
22§ 4143. General powers and duties of nonqualified foreign
23corporations.
24(a) Acquisition of real and personal property.--Every
25nonqualified foreign business corporation may acquire, hold,
26mortgage, lease and transfer real and personal property in this
27Commonwealth in the same manner and subject to the same
28limitations as a qualified foreign business corporation.
29(b) Duties.--Except as provided in section 4141(a) (relating
30to right to bring actions suspended), a nonqualified foreign
1business corporation doing business in this Commonwealth within
2the meaning of Subchapter B (relating to qualification) shall be
3subject to the same liabilities, restrictions, duties and
4penalties now or hereafter imposed upon a qualified foreign
5business corporation.
6§ 4144. Registered office of qualified foreign corporations.
7(a) General rule.--Subject to the provisions of section
81507(c) (relating to alternative procedure), every qualified
9foreign business corporation shall have, and continuously
10maintain, in this Commonwealth a registered office, which may
11but need not be the same as its place of business in this
12Commonwealth.
13(b) Change.--A qualified foreign business corporation may,
14from time to time, change the address of its registered office
15in the manner provided by section 1507(b) (relating to statement
16of change of registered office).
17SUBCHAPTER D
18DOMESTICATION
19Sec.
204161. Domestication.
214162. Effect of domestication.
22§ 4161. Domestication.
23(a) General rule.--Any qualified foreign business
24corporation may become a domestic business corporation by filing
25in the Department of State articles of domestication. The
26articles of domestication, upon being filed in the department,
27shall constitute the articles of the domesticated foreign
28corporation, and it shall thereafter continue as a corporation
29which shall be a domestic business corporation subject to this
30subpart.
1(b) Articles of domestication.--The articles of
2domestication shall be executed by the corporation and shall set
3forth in the English language:
4(1) The name of the corporation. If the name is in a
5foreign language, it shall be set forth in Roman letters or
6characters or Arabic or Roman numerals. If the name is one
7that is rendered unavailable by any provision of section
81303(b) or (c) (relating to corporate name), the corporation
9shall adopt, in accordance with any procedures for changing
10the name of the corporation that are applicable prior to the
11domestication of the corporation, and shall set forth in the
12articles of domestication an available name.
13(2) Subject to section 109 (relating to name of
14commercial registered office provider in lieu of registered
15address), the address, including street and number, if any,
16of its registered office in this Commonwealth.
17(3) A statement that upon domestication the corporation
18will be subject to the domestic corporation provisions of the
19Business Corporation Law of 1988 and, if desired, a brief
20statement of the purpose or purposes for which it is to be
21domesticated which shall be a purpose or purposes for which a
22domestic business corporation may be incorporated under
23Article B (relating to domestic business corporations
24generally) and which may consist of or include a statement
25that the corporation shall have unlimited power to engage in
26and to do any lawful act concerning any or all lawful
27business for which corporations may be incorporated under the
28Business Corporation Law of 1988.
29(4) The term for which upon domestication it is to
30exist, if not perpetual.
1(5) Any desired provisions relating to the manner and
2basis of reclassifying the shares of the corporation.
3(6) A statement that the filing of articles of
4domestication and, if desired, the renunciation of the
5original charter or articles of the corporation has been
6authorized (unless its charter or other organic documents
7require a greater vote) by a majority of the votes cast by
8all shareholders entitled to vote thereon and, if any class
9of shares is entitled to vote thereon as a class, a majority
10of the votes cast in each class vote.
11(7) Any provisions desired providing special treatment
12of shares held by any shareholder or group of shareholders if
13the laws of the jurisdiction under which the corporation was
14incorporated prior to its domestication permit such special
15treatment.
16(8) Any other provisions authorized by Article B to be
17set forth in the original articles.
18(c) Cross references.--See sections 134 (relating to
19docketing statement) and 135 (relating to requirements to be met
20by filed documents).
21§ 4162. Effect of domestication.
22(a) General rule.--As a domestic business corporation, the
23domesticated corporation shall no longer be a foreign business
24corporation for the purposes of this subpart and shall, instead,
25be a domestic business corporation with all the powers and
26privileges and all the duties and limitations granted and
27imposed upon domestic business corporations. In all other
28respects, the domesticated corporation shall be deemed to be the
29same corporation as it was prior to the domestication without
30any change in or effect on its existence. Without limiting the
1generality of the previous sentence, the domestication shall not
2be deemed to have affected in any way:
3(1) the right and title of the corporation in and to its
4assets, property, franchises, estates and choses in action;
5(2) the liability of the corporation for its debts,
6obligations, penalties and public accounts due the
7Commonwealth;
8(3) any liens or other encumbrances on the property or
9assets of the corporation; or
10(4) any contract, license or other agreement to which
11the corporation is a party or under which it has any rights
12or obligations.
13(b) Reclassification of shares.--The shares of the
14domesticated corporation shall be unaffected by the
15domestication except to the extent, if any, reclassified in the
16articles of domestication.]
17Section 30. Sections 5103(a) introductory paragraph and the
18definitions of "articles," "foreign nonprofit corporation,"
19"nonqualified foreign corporation" and "qualified foreign
20corporation" or "qualified foreign nonprofit corporation" are
21amended to read:
22§ 5103. Definitions.
23(a) General definitions.--Subject to additional definitions
24contained in subsequent provisions of this subpart that are
25applicable to specific provisions of this subpart, the following
26words and phrases when used in Part I (relating to preliminary
27provisions) or in this subpart shall have the meanings given to
28them in this section unless the context clearly indicates
29otherwise:
30* * *
1"Articles." The original articles of incorporation, all
2amendments thereof, and any other articles, statements or
3certificates permitted or required to be filed in the Department
4of State by sections 108 (relating to change in location or
5status of registered office provided by agent) and 138 (relating
6to statement of correction), Chapter 3 (relating to entity
7transactions) or this subpart and including what have heretofore
8been designated by law as certificates of incorporation or
9charters. If an amendment of the articles or [articles of merger
10or division made in the manner permitted by this subpart] a
11statement filed under Chapter 3 restates articles in their
12entirety [or if there are articles of consolidation, conversion
13or domestication], thenceforth the "articles" shall not include
14any prior documents and any certificate issued by the department
15with respect thereto shall so state.
16* * *
17"Foreign nonprofit corporation." A foreign corporation not-
18for-profit or other entity subject to Chapter 61 (relating to
19foreign nonprofit corporations), whether or not required to
20[qualify thereunder] register under Chapter 4 (relating to
21foreign associations).
22* * *
23["Nonqualified foreign corporation" or "nonqualified foreign
24nonprofit corporation." A foreign corporation not-for-profit
25that is not a qualified foreign corporation, as defined in this
26section.]
27* * *
28["Qualified foreign corporation" or "qualified foreign
29nonprofit corporation." A foreign corporation not-for-profit
30authorized under Chapter 61 (relating to foreign nonprofit
1corporations) to do business in this Commonwealth.]
2* * *
3Section 31. Section 5106 of Title 15 is amended to read:
4§ 5106. Uniform application of subpart.
5(a) General rule.--Except as provided in subsection (b),
6this [subpart] title and its amendments are intended to provide
7uniform rules for the governance and regulation of the affairs
8of nonprofit corporations and of their officers, directors and
9members and of members of other bodies, regardless of the date
10or manner of incorporation or qualification, or of the issuance
11of any evidences of membership in or shares of a nonprofit
12corporation.
13(b) Exceptions.--
14(1) Unless expressly provided otherwise in any amendment
15to this [subpart] title, the amendment shall take effect only
16prospectively.
17(2) Any existing corporation lawfully using a name or,
18as a part of its name, a word that could not be used as or
19included in the name of a corporation subsequently
20incorporated or qualified under this [subpart] title may
21continue to use the name or word as part of its name if the
22use or inclusion of the word or name was lawful when first
23adopted by the corporation in this Commonwealth.
24(3) Subsection (a) shall not adversely affect the rights
25specifically provided for or saved in this subpart,
26including, without limiting the generality of the foregoing,
27the provisions of section [5952(d) (relating to proposal and
28adoption of plan of division)] 363 (relating to approval of
29division).
30(4) Nothing in this [subpart] title shall be deemed to
1repeal or supersede any provision in section 7 of the act of
2April 26, 1855 (P.L.328, No.347), entitled "An act relating
3to Corporations and to Estates held for Corporate, Religious
4and Charitable uses."
5Section 32. Sections 5303, 5304 and 5305 of Title 15 are
6repealed:
7[§ 5303. Corporate name.
8(a) General rule.--The corporate name may be in any
9language, but must be expressed in Roman letters or characters
10or Arabic or Roman numerals.
11(b) Duplicate use of names.--The corporate name shall be
12distinguishable upon the records of the Department of State
13from:
14(1) The name of any other domestic corporation for
15profit or not-for-profit which is either in existence or for
16which articles of incorporation have been filed but have not
17yet become effective, or of any foreign corporation for
18profit or not-for-profit which is either authorized to do
19business in this Commonwealth or for which an application for
20a certificate of authority has been filed but which has not
21yet become effective, or the name of any association
22registered at any time under 54 Pa.C.S. Ch. 5 (relating to
23corporate and other association names), unless the other
24association:
25(i) has stated that it is about to change its name,
26or to cease to do business, or is being wound up, or is a
27foreign association about to withdraw from doing business
28in this Commonwealth, and the statement and a written
29consent to the adoption of the name executed by the other
30association is filed in the Department of State;
1(ii) has filed with the Department of Revenue a
2certificate of out of existence, or has failed for a
3period of three successive years to file with the
4Department of Revenue a report or return required by law
5and the fact of such failure has been certified by the
6Department of Revenue to the Department of State;
7(iii) has abandoned its name under the laws of its
8jurisdiction of incorporation, by amendment, merger,
9consolidation, division, expiration, dissolution or
10otherwise, without its name being adopted by a successor
11in a merger, consolidation, division or otherwise, and an
12official record of that fact, certified as provided by 42
13Pa.C.S. § 5328 (relating to proof of official records),
14is presented by any person to the department; or
15(iv) has had the registration of its name under 54
16Pa.C.S. Ch. 5 terminated and, if the termination was
17effected by operation of 54 Pa.C.S. § 504 (relating to
18effect of failure to make filings), the application for
19the use of the name is accompanied by a verified
20statement stating that at least 30 days' written notice
21of intention to appropriate the name was given to the
22delinquent association at its last known place of
23business and that, after diligent search by the affiant,
24the affiant believes the association to be out of
25existence.
26(2) A name the exclusive right to which is at the time
27reserved by any other person whatsoever in the manner
28provided by statute. A name shall be rendered unavailable for
29corporate use by reason of the filing in the Department of
30State of any assumed or fictitious name required by 54
1Pa.C.S. Ch. 3 (relating to fictitious names) to be filed in
2the department only if and to the extent expressly so
3provided in that chapter.
4(c) Required approvals or conditions.--
5(1) The corporate name shall not imply that the
6corporation is:
7(i) A governmental agency of the Commonwealth or of
8the United States.
9(ii) A bank, bank and trust company, savings bank,
10private bank or trust company, as defined in the act of
11November 30, 1965 (P.L.847, No.356), known as the Banking
12Code of 1965.
13(iii) An insurance company.
14(iv) A public utility as defined in 66 Pa.C.S. § 102
15(relating to definitions).
16(v) A credit union. See 17 Pa.C.S. § 104 (relating
17to prohibition on use of words "credit union," etc.).
18(2) The corporate name shall not contain:
19(i) The word "college," "university" or "seminary"
20when used in such a way as to imply that it is an
21educational institution conforming to the standards and
22qualifications prescribed by the State Board of
23Education, unless there is submitted a certificate from
24the Department of Education certifying that the
25corporation or proposed corporation is entitled to use
26that designation.
27(ii) Words that constitute blasphemy, profane
28cursing or swearing or that profane the Lord's name.
29(iii) The words "engineer" or "engineering" or
30"surveyor" or "surveying" or any other word implying that
1any form of the practice of engineering or surveying as
2defined in the act of May 23, 1945 (P.L.913, No.367),
3known as the Professional Engineers Registration Law, is
4provided unless at least one of the incorporators of a
5proposed corporation or the directors of the existing
6corporation has been properly registered with the State
7Registration Board for Professional Engineers in the
8practice of engineering or surveying and there is
9submitted to the department a certificate from the board
10to that effect.
11(iv) The words "Young Men's Christian Association"
12or any other words implying that the corporation is
13affiliated with the State Young Men's Christian
14Association of Pennsylvania unless the corporation is
15incorporated for the purpose of the improvement of the
16spiritual, mental, social and physical condition of young
17people, by the support and maintenance of lecture rooms,
18libraries, reading rooms, religious and social meetings,
19gymnasiums, and such other means and services as may
20conduce to the accomplishment of that object, according
21to the general rules and regulations of such State
22association.
23(v) The words "architect" or "architecture" or any
24other word implying that any form of the practice of
25architecture as defined in the act of December 14, 1982
26(P.L.1227, No.281), known as the Architects Licensure
27Law, is provided unless at least one of the incorporators
28of a proposed corporation or the directors of the
29existing corporation has been properly registered with
30the Architects Licensure Board in the practice of
1architecture and there is submitted to the department a
2certificate from the board to that effect.
3(vi) The word "cooperative" or an abbreviation
4thereof unless the corporation is a cooperative
5corporation.
6(d) Other rights unaffected.--This section shall not
7abrogate or limit the law as to unfair competition or unfair
8practices, nor derogate from the common law, the principles of
9equity or the provisions of Title 54 (relating to names) with
10respect to the right to acquire and protect trade names.
11Subsection (b) shall not apply if the applicant files in the
12department a certified copy of a final order of a court of
13competent jurisdiction establishing the prior right of the
14applicant to the use of a name in this Commonwealth.
15(e) Remedies for violation of section.--The use of a name in
16violation of this section shall not vitiate or otherwise affect
17the corporate existence, but any court having jurisdiction may
18enjoin the corporation from using or continuing to use a name in
19violation of this section upon the application of:
20(1) the Attorney General, acting on his own motion or at
21the instance of any administrative department, board or
22commission of this Commonwealth; or
23(2) any person adversely affected.
24(f) Cross references.--See sections 135(e) (relating to
25distinguishable names) and 5106(b)(2) (relating to limited
26uniform application of subpart).
27§ 5304. Required name changes by senior corporations.
28(a) Adoption of new name upon reactivation.--Where a
29corporate name is made available on the basis that the
30corporation or other association that formerly registered the
1name has failed to file with the Department of Revenue a report
2or a return required by law or where the corporation or other
3association has filed with the Department of Revenue a
4certificate of out of existence, the corporation or other
5association shall cease to have by virtue of its prior
6registration any right to the use of the name. The corporation
7or other association, upon withdrawal of the certificate of out
8of existence or upon the removal of its delinquency in the
9filing of the required reports or returns, shall make inquiry
10with the Department of State with regard to the availability of
11its name and, if the name has been made available to another
12domestic or foreign corporation for profit or not-for-profit or
13other association by virtue of these conditions, shall adopt a
14new name in accordance with law before resuming its activities.
15(b) Enforcement of undertaking to release name.--If a
16corporation has used a name that is not distinguishable upon the
17records of the Department of State from the name of another
18corporation or other association as permitted by section 5303(b)
19(1) (relating to duplicate use of names) and the other
20corporation or other association continues to use its name in
21this Commonwealth and does not change its name, cease to do
22business, be wound up, or withdraw as it proposed to do in its
23consent or change its name as required by subsection (a), any
24court having jurisdiction may enjoin the other corporation or
25other association from continuing to use its name or a name that
26is not distinguishable therefrom, upon the application of:
27(1) the Attorney General, acting on his own motion or at
28the instance of any administrative department, board or
29commission of this Commonwealth; or
30(2) upon the application of any person adversely
1affected.
2§ 5305. Reservation of corporate name.
3(a) General rule.--The exclusive right to the use of a
4corporate name may be reserved by any person. The reservation
5shall be made by delivering to the Department of State an
6application to reserve a specified corporate name, executed by
7the applicant. If the department finds that the name is
8available for corporate use, it shall reserve the name for the
9exclusive use of the applicant for a period of 120 days.
10(b) Transfer of reservation.--The right to exclusive use of
11a specified corporate name reserved under subsection (a) may be
12transferred to any other person by delivering to the department
13a notice of the transfer, executed by the person who reserved
14the name, and specifying the name and address of the transferee.
15(c) Cross references.--See sections 134 (relating to
16docketing statement) and 6131 (relating to registration of
17name).]
18Section 33. Sections 5341, 5757 and 5766(c) of Title 15 are
19amended to read:
20§ 5341. Statement of revival.
21(a) General rule.--Any nonprofit corporation whose charter
22or articles have been forfeited by proclamation of the Governor
23pursuant to section 1704 of the act of April 9, 1929 (P.L.343,
24No.176), known as The Fiscal Code, or otherwise, or whose
25corporate existence has expired by reason of any limitation
26contained in its charter or articles and the failure to effect a
27timely renewal or extension of its corporate existence, may, at
28any time by [filing] delivering to the department for filing a
29statement of revival, procure a revival of its charter or
30articles, together with all the rights, franchises, privileges
1and immunities and subject to all of its duties, debts and
2liabilities that had been vested in and imposed upon the
3corporation by its charter or articles as last in effect.
4(b) Contents of statement.--The statement of revival shall
5be [executed] signed in the name of the forfeited or expired
6corporation and shall, subject to section 109 (relating to name
7of commercial registered office provider in lieu of registered
8address), set forth:
9(1) The name of the corporation at the time its charter
10or articles were forfeited or expired and the address,
11including street and number, if any, of its last registered
12office.
13(2) The statute by or under which the corporation was
14incorporated and the date of incorporation.
15(3) The name that the corporation adopts as its new name
16if the adoption of a new name is required by section [5304]
17207 (relating to required name changes by senior
18[corporations] associations).
19(4) The address, including street and number, if any, of
20its registered office in this Commonwealth.
21(5) A reference to the proclamation or other action by
22which its charter or articles were forfeited or a reference
23to the limitation contained in its expired charter or
24articles.
25(6) A statement that the corporate existence of the
26corporation shall be revived.
27(7) A statement that the filing of the statement of
28revival has been authorized by the corporation. Every
29forfeited or expired corporation may act by its last
30directors or may elect directors and officers in the manner
1provided by this subpart for the limited purpose of effecting
2a filing under this section.
3(c) Filing and effect.--The statement of revival and, in the
4case of a forfeited corporation, the clearance certificates
5required by section 139 (relating to tax clearance of certain
6fundamental transactions) shall be [filed in the Department of
7State] delivered to the department for filing. Upon the filing
8of the statement of revival, the corporation shall be revived
9with the same effect as if its charter or articles had not been
10forfeited or expired by limitation. The revival shall validate
11all contracts and other transactions made and effected within
12the scope of the articles of the corporation by its
13representatives during the time when its charter or articles
14were forfeited or expired to the same effect as if its charter
15or articles had not been forfeited or expired.
16(d) Cross [reference.--See section] references.--See
17sections 134 (relating to docketing statement) and 135 (relating
18to requirements to be met by filed documents).
19§ 5757. Action by members.
20(a) General rule.--Except as otherwise provided in this
21[subpart] title or in a bylaw adopted by the members, whenever
22any corporate action is to be taken by vote of the members of a
23nonprofit corporation, it shall be authorized upon receiving the
24affirmative vote of a majority of the votes cast by the members
25entitled to vote thereon and, if any members are entitled to
26vote thereon as a class, upon receiving the affirmative vote of
27a majority of the votes cast by the members entitled to vote as
28a class.
29(b) Changes in required vote.--Whenever a provision of this
30[subpart] title requires a specified number or percentage of
1votes of members or of a class of members for the taking of any
2action, a nonprofit corporation may prescribe in a bylaw adopted
3by the members that a higher number or percentage of votes shall
4be required for the action. The number or percentage of members
5necessary to call a special meeting of members or to petition
6for the proposal of an amendment of articles under this subpart
7may not be increased under this subsection. See sections 5504(d)
8(relating to adoption, amendment and contents of bylaws) and
95914(d) (relating to adoption of amendments).
10(c) Expenses.--Unless otherwise restricted in the articles,
11the corporation shall pay the reasonable expenses of
12solicitation of votes, proxies or consents of members by or on
13behalf of the board of directors or its nominees for election to
14the board, including solicitation by professional proxy
15solicitors and otherwise, and may pay the reasonable expenses of
16a solicitation by or on behalf of other persons.
17(d) Cross reference.--See section 322 (relating to approval
18by nonprofit corporation).
19§ 5766. Consent of members in lieu of meeting.
20* * *
21(c) [Effectiveness] Notice of action by partial consent.--
22[An action taken pursuant to subsection (b) shall not become
23effective until after at least ten days' notice of the action
24has been given to each member entitled to vote thereon who has
25not consented thereto.] Unless the bylaws require notice before
26an action pursuant to subsection (b) takes effect, prompt notice
27that an action has been taken shall be given to each member
28entitled to vote on the action that has not consented.
29Section 34. The heading of Chapter 59 of Title 15 is amended
30to read:
1CHAPTER 59
2[FUNDAMENTAL CHANGES] AMENDMENTS, SALE
3OF ASSETS AND DISSOLUTION
4Section 35. The heading of Subchapter C of Chapter 59 of
5Title 15 is amended to read:
6SUBCHAPTER C
7[MERGER, CONSOLIDATION AND] SALE OF ASSETS
8Section 36. Sections 5921, 5922, 5923, 5924, 5925, 5926,
95927, 5928 and 5929 of Title 15 are repealed:
10[§ 5921. Merger and consolidation authorized.
11(a) Domestic surviving or new corporation.--Any two or more
12domestic nonprofit corporations, or any two or more foreign
13nonprofit corporations, or any one or more domestic nonprofit
14corporations and any one or more foreign nonprofit corporations,
15may, in the manner provided in this subchapter, be merged into
16one of the domestic nonprofit corporations, designated in this
17subchapter as the surviving corporation, or consolidated into a
18new corporation to be formed under this subpart, if the foreign
19corporations are authorized by the laws of the jurisdiction
20under which they are incorporated to effect a merger or
21consolidation with a corporation of another jurisdiction.
22(b) Foreign surviving or new corporation.--Any one or more
23domestic nonprofit corporations, and any one or more foreign
24nonprofit corporations, may, in the manner provided in this
25subchapter, be merged into one of the foreign nonprofit
26corporations, designated in this subchapter as the surviving
27corporation, or consolidated into a new corporation to be
28incorporated under the laws of the jurisdiction under which one
29of the foreign nonprofit corporations is incorporated, if the
30laws of that jurisdiction authorize a merger with or
1consolidation into a corporation of another jurisdiction.
2§ 5922. Plan of merger or consolidation.
3(a) Preparation of plan.--A plan of merger or consolidation,
4as the case may be, shall be prepared, setting forth:
5(1) The terms and conditions of the merger or
6consolidation.
7(2) If the surviving or new corporation is or is to be a
8domestic nonprofit corporation:
9(i) any changes desired to be made in the articles,
10which may include a restatement of the articles in the
11case of a merger; or
12(ii) in the case of a consolidation, all of the
13statements required by this subpart to be set forth in
14restated articles.
15(3) Such other provisions as are deemed desirable.
16(b) Post-adoption amendment.--A plan of merger or
17consolidation may contain a provision that the boards of
18directors or other bodies of the constituent corporations may
19amend the plan at any time prior to its effective date, except
20that an amendment made subsequent to the adoption of the plan by
21the members of any constituent corporation shall not change:
22(1) The term of memberships or the amount or kind of
23securities, obligations, cash, property or rights to be
24received in exchange for or on conversion of all or any of
25the memberships in the constituent corporation.
26(2) Any term of the articles of the surviving or new
27corporation to be effected by the merger or consolidation.
28(3) Any of the terms and conditions of the plan if the
29change would adversely affect the members of the constituent
30corporation.
1(c) Proposal.--Every merger or consolidation shall be
2proposed in the case of each domestic nonprofit corporation:
3(1) by the adoption by the board of directors or other
4body of a resolution approving the plan of merger or
5consolidation;
6(2) unless otherwise provided in the articles, by
7petition of members entitled to cast at least 10% of the
8votes that all members are entitled to cast thereon, setting
9forth the proposed plan of merger or consolidation, which
10petition shall be directed to the board of directors and
11filed with the secretary of the corporation; or
12(3) by such other method as may be provided in the
13bylaws.
14(d) Submission to members.--Except where the corporation has
15no members entitled to vote thereon, the board of directors or
16other body shall direct that the plan be submitted to a vote of
17the members entitled to vote thereon at a regular or special
18meeting of the members.
19(e) Party to plan or transaction.--A corporation,
20partnership, business trust or other association that approves a
21plan in its capacity as a member or creditor of a merging or
22consolidating corporation or that furnishes all or a part of the
23consideration contemplated by a plan does not thereby become a
24party to the plan or the merger or consolidation for the
25purposes of this subchapter.
26(f) Reference to outside facts.--Any of the terms of a plan
27of merger or consolidation may be made dependent upon facts
28ascertainable outside of the plan if the manner in which the
29facts will operate upon the terms of the plan is set forth in
30the plan. Such facts may include, without limitation, actions or
1events within the control of or determinations made by a party
2to the plan or a representative of a party to the plan.
3§ 5923. Notice of meeting of members.
4(a) General rule.--Notice in record form of the meeting of
5members that will act on the proposed plan shall be given to
6each member of record, whether or not entitled to vote thereon,
7of each domestic nonprofit corporation that is a party to the
8merger or consolidation. The notice shall include or be
9accompanied by a copy of the proposed plan or a summary thereof.
10The notice shall provide that a copy of the bylaws of the
11surviving or new corporation will be furnished to any member on
12request and without cost.
13(b) Cross reference.--See Subchapter A of Chapter 57
14(relating to notice and meetings generally).
15§ 5924. Adoption of plan.
16(a) General rule.--The plan of merger or consolidation shall
17be adopted upon receiving the affirmative vote of the members
18present entitled to cast at least a majority of the votes that
19all members present are entitled to cast thereon of each of the
20domestic nonprofit corporations that is a party to the merger or
21consolidation and, if any class of members is entitled to vote
22thereon as a class, the affirmative vote of the members present
23of such class entitled to cast at least a majority of the votes
24that all members present of such class are entitled to cast
25thereon.
26(b) Adoption in absence of voting members.--If a merging or
27consolidating corporation has no members entitled to vote
28thereon, or no members entitled to vote thereon other than
29persons who also constitute the board of directors or other
30body, a plan of merger or consolidation shall be deemed adopted
1by the corporation when it has been adopted by the board of
2directors or other body pursuant to section 5922 (relating to
3plan of merger or consolidation).
4(c) Termination of plan.--Prior to the time when a merger or
5consolidation becomes effective, the merger or consolidation may
6be terminated pursuant to provisions for termination, if any,
7set forth in the plan. If articles of merger or consolidation
8have been filed in the department prior to the termination, a
9statement under section 5902 (relating to statement of
10termination) shall be filed in the department.
11§ 5925. Authorization by foreign corporations.
12The plan of merger or consolidation shall be authorized,
13adopted or approved by each foreign nonprofit corporation that
14desires to merge or consolidate in accordance with the laws of
15the jurisdiction in which it is incorporated and, in the case of
16a foreign domiciliary corporation, in accordance with the
17provisions of this subpart to the extent provided by section
186145 (relating to applicability of certain safeguards to foreign
19domiciliary corporations).
20§ 5926. Articles of merger or consolidation.
21Upon the adoption of the plan of merger or consolidation by
22the corporations desiring to merge or consolidate, as provided
23in this subchapter, articles of merger or articles of
24consolidation, as the case may be, shall be executed by each
25corporation and shall, subject to section 109 (relating to name
26of commercial registered office provider in lieu of registered
27address), set forth:
28(1) The name and the location of the registered office,
29including street and number, if any, of the domestic
30surviving or new corporation or, in the case of a foreign
1surviving or new corporation, the name of the corporation and
2its jurisdiction of incorporation, together with either:
3(i) if a qualified foreign nonprofit corporation,
4the address, including street and number, if any, of its
5registered office in this Commonwealth; or
6(ii) if a nonqualified foreign nonprofit
7corporation, the address, including street and number, if
8any, of its principal office under the laws of the
9jurisdiction in which it is incorporated.
10(2) The name and address, including street and number,
11if any, of the registered office of each other domestic
12nonprofit corporation and qualified foreign nonprofit
13corporation that is a party to the merger or consolidation.
14(3) If the plan is to be effective on a specified date,
15the hour, if any, and the month, day and year of the
16effective date.
17(4) The manner in which the plan was adopted by each
18domestic corporation and, if one or more foreign corporations
19are parties to the merger or consolidation, the fact that the
20plan was authorized, adopted or approved, as the case may be,
21by each of the foreign corporations in accordance with the
22laws of the jurisdiction in which it is incorporated.
23(5) Except as provided in section 5901 (relating to
24omission of certain provisions from filed plans), the plan of
25merger or consolidation.
26§ 5927. Filing of articles of merger or consolidation.
27(a) General rule.--The articles of merger or articles of
28consolidation, as the case may be, and the certificates or
29statement, if any, required by section 139 (relating to tax
30clearance of certain fundamental transactions) shall be filed in
1the Department of State.
2(b) Cross reference.--See section 134 (relating to docketing
3statement).
4§ 5928. Effective date of merger or consolidation.
5Upon the filing of the articles of merger or the articles of
6consolidation in the department or upon the effective date
7specified in the plan of merger or consolidation, whichever is
8later, the merger or consolidation shall be effective. The
9merger or consolidation of one or more domestic nonprofit
10corporations into a foreign nonprofit corporation shall be
11effective according to the provisions of law of the jurisdiction
12in which the foreign corporation is incorporated, but not until
13articles of merger or articles of consolidation have been
14adopted and filed, as provided in this subchapter.
15§ 5929. Effect of merger or consolidation.
16(a) Single surviving or new corporation.--Upon the merger or
17consolidation becoming effective, the several corporations
18parties to the merger or consolidation shall be a single
19corporation which, in the case of a merger, shall be the
20corporation designated in the plan of merger as the surviving
21corporation and, in the case of a consolidation, shall be the
22new corporation provided for in the plan of consolidation. The
23separate existence of all corporations parties to the merger or
24consolidation shall cease, except that of the surviving
25corporation, in the case of a merger. The surviving or new
26corporation, as the case may be, if it is a domestic nonprofit
27corporation, shall not thereby acquire authority to engage in
28any business or exercise any right that a corporation may not be
29incorporated under this subpart to engage in or exercise.
30(b) Property rights.--Except as otherwise provided by order,
1if any, obtained pursuant to section 5547(b) (relating to
2nondiversion of certain property), all the property, real,
3personal and mixed, and franchises of each of the corporations
4parties to the merger or consolidation, and all debts due on
5whatever account to any of them, including subscriptions for
6membership and other choses in action belonging to any of them,
7shall be deemed to be vested in and shall belong to the
8surviving or new corporation, as the case may be, without
9further action, and the title to any real estate, or any
10interest therein, vested in any of the corporations shall not
11revert or be in any way impaired by reason of the merger or
12consolidation. The surviving or new corporation shall
13thenceforth be responsible for all the liabilities of each of
14the corporations so merged or consolidated. Liens upon the
15property of the merging or consolidating corporations shall not
16be impaired by the merger or consolidation, and any claim
17existing or action or proceeding pending by or against any of
18the corporations may be prosecuted to judgment as if the merger
19or consolidation had not taken place, or the surviving or new
20corporation may be proceeded against or substituted in its
21place. Any devise, gift or grant contained in any will or other
22instrument, in trust or otherwise, made before or after such
23merger or consolidation, to or for any of the constituent
24corporations, shall inure to the surviving or new corporation,
25as the case may be, subject to compliance with the requirements
26of section 5550 (relating to devises, bequests and gifts after
27certain fundamental changes).
28(c) Taxes.--Any taxes, interest, penalties and public
29accounts of the Commonwealth claimed against any of the merging
30or consolidating corporations that are settled, assessed or
1determined prior to or after the merger or consolidation shall
2be the liability of the surviving or new corporation and,
3together with interest thereon, shall be a lien against the
4franchises and property, both real and personal, of the
5surviving or new corporation.
6(d) Articles of incorporation.--In the case of a merger, the
7articles of incorporation of the surviving domestic nonprofit
8corporation, if any, shall be deemed to be amended to the
9extent, if any, that changes in its articles are stated in the
10plan of merger. In the case of a consolidation into a domestic
11nonprofit corporation, the statements that are set forth in the
12plan of consolidation, or articles of incorporation set forth
13therein, shall be deemed to be the articles of incorporation of
14the new corporation.]
15Section 37. Section 5930(a) of Title 15 is amended to read:
16§ 5930. Voluntary transfer of corporate assets.
17(a) General rule.--A sale, lease, exchange or other
18disposition of all, or substantially all, of the property and
19assets, with or without goodwill, of a nonprofit corporation, if
20not made pursuant to Subchapter [D] F of Chapter [19] 3
21(relating to division), may be made only pursuant to a plan of
22asset transfer. The property or assets of a direct or indirect
23subsidiary corporation that is controlled by a parent
24corporation shall also be deemed the property or assets of the
25parent corporation for purposes of this subsection. The plan of
26asset transfer shall set forth the terms and consideration of
27the sale, lease, exchange or other disposition or may authorize
28the board of directors or other body to fix any or all of the
29terms and conditions, including the consideration to be received
30by the corporation. Any of the terms of the plan may be made
1dependent upon facts ascertainable outside of the plan if the
2manner in which the facts will operate upon the terms of the
3plan is set forth in the plan. The plan of asset transfer shall
4be proposed and adopted, and may be amended after its adoption
5and terminated, by a nonprofit corporation in the manner
6provided in this subchapter for the proposal, adoption,
7amendment and termination of a plan of merger. A copy or summary
8of the plan shall be included in, or enclosed with, the notice
9of the meeting at which members will act on the plan. In order
10to make effective any plan so adopted, it shall not be necessary
11to file any articles or other document in the department, but
12the corporation shall comply with the requirements of section
135547(b) (relating to nondiversion of certain property).
14* * *
15Section 38. The heading of Subchapter D of Chapter 59 of
16Title 15 is amended to read:
17SUBCHAPTER D
18[DIVISION] (RESERVED)
19Section 39. Sections 5951, 5952, 5953, 5954, 5955, 5956,
205957 and Subchapter E of Chapter 59 and sections 6121, 6122 and
216123 of Title 15 are repealed:
22[§ 5951. Division authorized.
23(a) Division of domestic corporation.--Any domestic
24nonprofit corporation may, in the manner provided in this
25subchapter, be divided into two or more domestic nonprofit
26corporations incorporated or to be incorporated under this
27article, or into one or more domestic nonprofit corporations and
28one or more foreign nonprofit corporations to be incorporated
29under the laws of another jurisdiction or jurisdictions, or into
30two or more foreign nonprofit corporations, if the laws of the
1other jurisdictions authorize the division.
2(b) Division of foreign corporation.--Any foreign nonprofit
3corporation may, in the manner provided in this subchapter, be
4divided into one or more domestic nonprofit corporations to be
5incorporated under this subpart and one or more foreign
6nonprofit corporations incorporated or to be incorporated under
7the laws of another jurisdiction or jurisdictions, or into two
8or more domestic nonprofit corporations, if the foreign
9nonprofit corporation is authorized under the laws of the
10jurisdiction under which it is incorporated to effect a
11division.
12(c) Surviving and new corporations.--The corporation
13effecting a division, if it survives the division, is designated
14in this subchapter as the surviving corporation. All
15corporations originally incorporated by a division are
16designated in this subchapter as new corporations. The surviving
17corporation, if any, and the new corporation or corporations are
18collectively designated in this subchapter as the resulting
19corporations.
20§ 5952. Proposal and adoption of plan of division.
21(a) Preparation of plan.--A plan of division shall be
22prepared, setting forth:
23(1) The terms and conditions of the division, including
24the manner and basis of:
25(i) The reclassification of the membership interests
26or shares of the surviving corporation, if there be one.
27(ii) The disposition of the membership interests or
28shares or obligations, if any, of the new corporation or
29corporations resulting from the division.
30(2) A statement that the dividing nonprofit corporation
1will, or will not, survive the division.
2(3) Any changes desired to be made in the articles of
3the surviving corporation, if there be one, including a
4restatement of the articles.
5(4) The articles of incorporation required by subsection
6(b).
7(5) Such other provisions as are deemed desirable.
8(b) Articles of new corporations.--There shall be included
9in or annexed to the plan of division:
10(1) Articles of incorporation, which shall contain all
11of the statements required by this subpart to be set forth in
12restated articles, for each of the new domestic nonprofit
13corporations, if any, resulting from the division.
14(2) Articles of incorporation, certificates of
15incorporation or other charter documents for each of the new
16foreign nonprofit corporations, if any, resulting from the
17division.
18(c) Proposal and adoption.--Except as otherwise provided in
19section 5953 (relating to division without member approval), the
20plan of division shall be proposed and adopted, and may be
21amended after its adoption and terminated, by a domestic
22nonprofit corporation in the manner provided for the proposal,
23adoption, amendment and termination of a plan of merger in
24Subchapter C (relating to merger, consolidation and sale of
25assets) or, if the dividing corporation is a foreign nonprofit
26corporation, in accordance with the laws of the jurisdiction in
27which it is incorporated and, in the case of a foreign
28domiciliary corporation, the provisions of this subpart to the
29extent provided by section 6145 (relating to applicability of
30certain safeguards to foreign corporations). There shall be
1included in or enclosed with the notice of the meeting of
2members that will act on the plan a copy or summary of the plan.
3(d) Special requirements.--If any provision of the bylaws of
4a dividing domestic nonprofit corporation adopted before January
51, 1972 shall require for the adoption of a plan of merger or
6consolidation or a plan involving the sale, lease or exchange of
7all or substantially all of the property and assets of the
8corporation a specific number or percentage of votes of
9directors, members, or members of an other body or other special
10procedures, the plan of division shall not be adopted without
11such number or percentage of votes or compliance with such other
12special procedures.
13(e) Financial status of resulting corporations.--Unless the
14plan of division provides that the dividing corporation shall
15survive the division and that all membership interests or shares
16or obligations, if any, of all new corporations resulting from
17the plan shall be owned solely by the surviving corporation, no
18plan of division may be made effective at a time when the
19dividing corporation is insolvent or when the division would
20render any of the resulting corporations insolvent.
21(f) Rights of holders of indebtedness.--If any debt
22securities, notes or similar evidences of indebtedness for money
23borrowed, whether secured or unsecured, indentures or other
24contracts were issued, incurred or executed by the dividing
25corporation before January 1, 1972, and have not been amended
26subsequent to that date, the liability of the dividing
27corporation thereunder shall not be affected by the division nor
28shall the rights of the obligees thereunder be impaired by the
29division, and each of the resulting corporations may be
30proceeded against or substituted in place of the dividing
1corporation as joint and several obligors on such liability,
2regardless of any provision of the plan of division apportioning
3the liabilities of the dividing corporation.
4(g) Reference to outside facts.--Any of the terms of a plan
5of division may be made dependent upon facts ascertainable
6outside of the plan if the manner in which the facts will
7operate upon the terms of the plan is set forth in the plan.
8Such facts may include, without limitation, actions or events
9within the control of or determinations made by the dividing
10corporation or a representative of the dividing corporation.
11§ 5953. Division without member approval.
12Unless otherwise required by its bylaws or by section 5952
13(relating to proposal and adoption of plan of division), a plan
14of division that does not alter the state of incorporation of a
15nonprofit corporation nor amend in any respect the provisions of
16its articles, except amendments that under section 5914(b)
17(relating to adoption in absence of voting members) may be made
18without member action, shall not require the approval of the
19members of the corporation if the transfers of assets effected
20by the division, if effected by means of a sale, lease, exchange
21or other disposition, would not require the approval of members
22under section 5930 (relating to voluntary transfer of corporate
23assets).
24§ 5954. Articles of division.
25Upon the adoption of a plan of division by the corporation
26desiring to divide, as provided in this subchapter, articles of
27division shall be executed by the corporation and shall, subject
28to section 109 (relating to name of commercial registered office
29provider in lieu of registered address), set forth:
30(1) The name and the location of the registered office,
1including street and number, if any, of the dividing domestic
2nonprofit corporation or, in the case of a dividing foreign
3nonprofit corporation, the name of the corporation and the
4jurisdiction in which it is incorporated, together with
5either:
6(i) If a qualified foreign nonprofit corporation,
7the address, including street and number, if any, of its
8registered office in this Commonwealth.
9(ii) If a nonqualified foreign nonprofit
10corporation, the address, including street and number, if
11any, of its principal office under the laws of that
12jurisdiction.
13(2) The statute under which the dividing corporation was
14incorporated and the date of incorporation.
15(3) A statement that the dividing corporation will, or
16will not, survive the division.
17(4) The name and the address, including street and
18number, if any, of the registered office of each new domestic
19nonprofit corporation or qualified foreign nonprofit
20corporation resulting from the division.
21(5) If the plan is to be effective on a specified date,
22the hour, if any, and the month, day and year of the
23effective date.
24(6) The manner in which the plan was adopted by the
25corporation.
26(7) Except as provided in section 5901 (relating to
27omission of certain provisions from filed plans), the plan of
28division.
29§ 5955. Filing of articles of division.
30(a) General rule.--The articles of division and the
1certificates or statement, if any, required by section 139
2(relating to tax clearance of certain fundamental transactions)
3shall be filed in the Department of State.
4(b) Cross reference.--See section 134 (relating to docketing
5statement).
6§ 5956. Effective date of division.
7Upon the filing of articles of division in the department or
8upon the effective date specified in the plan of division,
9whichever is later, the division shall become effective. The
10division of a domestic nonprofit corporation into one or more
11foreign nonprofit corporations or the division of a foreign
12nonprofit corporation shall be effective according to the laws
13of the jurisdictions where the foreign corporations are or are
14to be incorporated and, in the case of a foreign domiciliary
15corporation, the provisions of this subpart to the extent
16provided by section 6145 (relating to applicability of certain
17safeguards to foreign domiciliary corporations), but not until
18articles of division have been adopted and filed as provided in
19this subchapter.
20§ 5957. Effect of division.
21(a) Multiple resulting corporations.--Upon the division
22becoming effective, the dividing corporation shall be subdivided
23into the distinct and independent resulting corporations named
24in the plan of division and, if the dividing corporation is not
25to survive the division, the existence of the dividing
26corporation shall cease. The resulting corporations, if they are
27domestic nonprofit corporations, shall not thereby acquire
28authority to engage in any business or exercise any right that a
29corporation may not be incorporated under this subpart to engage
30in or exercise. Any resulting foreign nonprofit corporation that
1is stated in the articles of division to be a qualified foreign
2nonprofit corporation shall be a qualified foreign nonprofit
3corporation under Article C (relating to foreign nonprofit
4corporations), and the articles of division shall be deemed to
5be the application for a certificate of authority and the
6certificate of authority issued thereon of the corporation.
7(b) Property rights; allocations of assets and
8liabilities.--
9(1) Except as otherwise provided by order, if any,
10obtained pursuant to section 5547(b) (relating to
11nondiversion of certain property):
12(i) All the property, real, personal and mixed, and
13franchises of the dividing corporation, and all debts due
14on whatever account to it, including subscriptions for
15membership and other choses in action belonging to it,
16shall, to the extent allocations of assets are
17contemplated by the plan of division, be deemed without
18further action to be allocated to and vested in the
19resulting corporations on such a manner and basis and
20with such effect as is specified in the plan, or per
21capita among the resulting corporations, as tenants in
22common, if no specification is made in the plan, and the
23title to any real estate, or interest therein, vested in
24any of the corporations shall not revert or be in any way
25impaired by reason of the division.
26(ii) Upon the division becoming effective, the
27resulting corporations shall each thenceforth be
28responsible as separate and distinct corporations only
29for such liabilities as each corporation may undertake or
30incur in its own name, but shall be liable for the
1liabilities of the dividing corporation in the manner and
2on the basis provided in subparagraphs (iv) and (v).
3(iii) Liens upon the property of the dividing
4corporation shall not be impaired by the division.
5(iv) Except as provided in section 5952(f) (relating
6to proposal and adoption of plan of division), to the
7extent allocations of liabilities are contemplated by the
8plan of division, the liabilities of the dividing
9corporation shall be deemed without further action to be
10allocated to and become the liabilities of the resulting
11corporations on such a manner and basis and with such
12effect as is specified in the plan; and one or more, but
13less than all, of the resulting corporations shall be
14free of the liabilities of the dividing corporation to
15the extent, if any, specified in the plan, if in either
16case:
17(A) no fraud on members without voting rights or
18violation of law shall be effected thereby; and
19(B) the plan does not constitute a fraudulent
20transfer under 12 Pa.C.S. Ch. 51 (relating to
21fraudulent transfers).
22(v) If the conditions in subparagraph (iv) for
23freeing one or more of the resulting corporations from
24the liabilities of the dividing corporation or for
25allocating some or all of the liabilities of the dividing
26corporation are not satisfied, the liabilities of the
27dividing corporation as to which those conditions are not
28satisfied shall not be affected by the division nor shall
29the rights of creditors thereunder be impaired by the
30division and any claim existing or action or proceeding
1pending by or against the corporation with respect to
2those liabilities may be prosecuted to judgment as if the
3division had not taken place, or the resulting
4corporations may be proceeded against or substituted in
5place of the dividing corporation as joint and several
6obligors on those liabilities, regardless of any
7provision of the plan of division apportioning the
8liabilities of the dividing corporation.
9(2) It shall not be necessary for a plan of division to
10list each individual asset or liability of the dividing
11corporation to be allocated to a new corporation so long as
12those assets and liabilities are described in a reasonable
13manner.
14(3) Each new corporation shall hold any assets and
15liabilities allocated to it as the successor to the dividing
16corporation, and those assets and liabilities shall not be
17deemed to have been assigned to the new corporation in any
18manner, whether directly or indirectly or by operation of
19law.
20(c) Taxes.--Any taxes, interest, penalties and public
21accounts of the Commonwealth claimed against the dividing
22corporation that are settled, assessed or determined prior to or
23after the division shall be the liability of any of the
24resulting corporations and, together with interest thereon,
25shall be a lien against the franchises and property, both real
26and personal, of all the corporations. Upon the application of
27the dividing corporation, the Department of Revenue, with the
28concurrence of the Office of Employment Security of the
29Department of Labor and Industry, shall release one or more, but
30less than all, of the resulting corporations from liability and
1liens for all taxes, interest, penalties and public accounts of
2the dividing corporation due the Commonwealth for periods prior
3to the effective date of the division if those departments are
4satisfied that the public revenues will be adequately secured.
5(d) Articles of surviving corporation.--The articles of
6incorporation of the surviving corporation, if there be one,
7shall be deemed to be amended to the extent, if any, that
8changes in its articles are stated in the plan of division.
9(e) Articles of new corporations.--The statements that are
10set forth in the plan of division with respect to each new
11domestic nonprofit corporation and that are required or
12permitted to be set forth in restated articles of incorporation
13of corporations incorporated under this subpart, or the articles
14of incorporation of each new corporation set forth therein,
15shall be deemed to be the articles of incorporation of each new
16corporation.
17(f) Directors and officers.--Unless otherwise provided in
18the plan, the directors and officers of the dividing corporation
19shall be the initial directors and officers of each of the
20resulting corporations.
21(g) Disposition of memberships.--Unless otherwise provided
22in the plan, the memberships and other securities or
23obligations, if any, of each new corporation resulting from the
24division shall be distributable to:
25(1) the surviving corporation if the dividing
26corporation survives the division; or
27(2) the members of the dividing corporation pro rata in
28any other case.
29(h) Conflict of laws.--It is the intent of the General
30Assembly that:
1(1) The effect of a division of a domestic nonprofit
2corporation shall be governed solely by the laws of this
3Commonwealth and any other jurisdiction under the laws of
4which any of the resulting corporations is incorporated.
5(2) The effect of a division on the assets and
6liabilities of the dividing corporation shall be governed
7solely by the laws of this Commonwealth and any other
8jurisdiction under the laws of which any of the resulting
9corporations is incorporated.
10(3) The validity of any allocations of assets or
11liabilities by a plan of division of a domestic nonprofit
12corporation, regardless of whether any of the new
13corporations is a foreign nonprofit corporation, shall be
14governed solely by the laws of this Commonwealth.
15(4) In addition to the express provisions of this
16subsection, this subchapter shall otherwise generally be
17granted the protection of full faith and credit under the
18Constitution of the United States.
19SUBCHAPTER E
20CONVERSION
21Sec.
225961. Conversion authorized.
235962. Proposal and adoption of plan of conversion.
245963. Articles of conversion.
255964. Filing of articles of conversion.
265965. Effective date of conversion.
275966. Effect of conversion.
28§ 5961. Conversion authorized.
29(a) General rule.--Any nonprofit corporation may, in the
30manner provided in this subchapter, be converted into a business
1corporation, hereinafter designated as the resulting
2corporation.
3(b) Exceptions.--
4(1) This subchapter shall not authorize any conversion
5involving:
6(i) A cooperative corporation.
7(ii) Beneficial, benevolent, fraternal or fraternal
8benefit societies having a lodge system and a
9representative form of government, or transacting any
10type of insurance whatsoever.
11(iii) Any corporation which by the laws of this
12Commonwealth is subject to the supervision of the
13Department of Banking, the Insurance Department or the
14Pennsylvania Public Utility Commission.
15(2) Paragraph (1) of this subsection shall not be
16construed as repealing any statute which provides a procedure
17for the conversion of a nonprofit corporation into an
18insurance corporation.
19§ 5962. Proposal and adoption of plan of conversion.
20(a) Preparation of plan.--A plan of conversion shall be
21prepared, setting forth:
22(1) The terms and conditions of the conversion.
23(2) The mode of carrying the conversion into effect.
24(3) A restatement of the articles of the resulting
25corporation, which articles shall comply with the
26requirements of Subpart B of Part II (relating to business
27corporations).
28(4) Such other details and provisions as are deemed
29desirable.
30(b) Proposal and adoption.--The plan of conversion shall be
1proposed and adopted, and may be terminated, in the manner
2provided for the proposal, adoption and termination of a plan of
3merger in Subchapter C (relating to merger, consolidation and
4sale of assets).
5§ 5963. Articles of conversion.
6Upon the adoption of a plan of conversion by the nonprofit
7corporation desiring to convert, as provided in this subchapter,
8articles of conversion shall be executed by the corporation and
9shall set forth:
10(1) The name of the corporation and, subject to section
11109 (relating to name of commercial registered office
12provider in lieu of registered address), the address,
13including street and number, if any, of its registered
14office.
15(2) The statute under which the corporation was
16incorporated and the date of incorporation.
17(3) If the plan is to be effective on a specified date,
18the hour, if any, and the month, day and year of the
19effective date.
20(4) The manner in which the plan was adopted by the
21corporation.
22(5) Except as provided in section 5901 (relating to
23omission of certain provisions from filed plans), the plan of
24conversion.
25§ 5964. Filing of articles of conversion.
26(a) General rule.--The articles of conversion shall be filed
27in the Department of State.
28(b) Cross reference.--See section 134 (relating to docketing
29statement).
30§ 5965. Effective date of conversion.
1Upon the filing of articles of conversion in the Department
2of State, or upon the effective date specified in the plan of
3conversion, whichever is later, the conversion shall become
4effective.
5§ 5966. Effect of conversion.
6Upon the conversion becoming effective, the corporation shall
7be deemed to be a business corporation for all purposes, shall
8cease to be a nonprofit corporation, and may thereafter operate
9for a purpose or purposes resulting in pecuniary profit,
10incidental or otherwise, to its members or shareholders. The
11corporation shall issue share certificates to each shareholder
12entitled thereto. The corporation shall remain liable for all
13existing obligations, public and private, taxes due the
14Commonwealth or any other taxing authority for periods prior to
15the effective date of the conversion, and, as such business
16corporation, it shall continue to be entitled to all assets
17theretofore pertaining to it as a nonprofit corporation except
18as otherwise provided by order, if any, obtained pursuant to
19section 5547(b) (relating to nondiversion of certain property).
20§ 5980. Dissolution by domestication.
21Whenever a domestic nonprofit corporation has domesticated
22itself under the laws of another jurisdiction by action similar
23to that provided under section 6161 (relating to domestication)
24and has authorized that action by the vote required by this
25subchapter for the approval of a proposal that the corporation
26dissolve voluntarily, the corporation may surrender its charter
27under the laws of this Commonwealth by filing in the department
28articles of dissolution under this subchapter containing the
29statements specified under section 5977(b)(1) through (4)
30(relating to articles of dissolution). If the corporation as
1domesticated in the other jurisdiction qualifies to do business
2in this Commonwealth either prior to or simultaneously with the
3filing of the articles of dissolution under this section, the
4corporation shall not be required to file with the articles of
5dissolution the tax clearance certificates that would otherwise
6be required under section 139 (relating to tax clearance of
7certain fundamental transactions).
8§ 6121. Admission of foreign corporations.
9(a) General rule.--A foreign nonprofit corporation, before
10doing business in this Commonwealth, shall procure a certificate
11of authority to do so from the Department of State, in the
12manner provided in this subchapter. A foreign nonprofit
13corporation shall not be denied a certificate of authority by
14reason of the fact that the laws of the jurisdiction governing
15its incorporation and internal affairs differ from the laws of
16this Commonwealth.
17(b) Qualification under former statute.--If a foreign
18corporation was on March 19, 1966, admitted to do business in
19this Commonwealth by the filing of a power of attorney and
20statement under the act of June 8, 1911 (P.L.710, No.283), such
21power of attorney and statement shall be deemed an approved
22application for a certificate of authority issued under this
23subchapter and the corporation shall be deemed a holder of the
24certificate. The corporation shall include in its initial
25application, if any, for an amended certificate of authority
26under this subchapter the information required by this
27subchapter to be set forth in an application for a certificate
28of authority. A certificate of authority issued under the former
29provisions of the Nonprofit Corporation Law of 1933 or former 15
30Pa.C.S. Pt. III Art. B, known as the Nonprofit Corporation Law
1of 1972, as added by the act of November 15, 1972 (P.L.1063,
2No.271), shall be deemed to be issued under this subchapter and
3the certificate of authority shall be deemed not to contain any
4reference to the kind of business that the corporation proposes
5to do in this Commonwealth.
6§ 6122. Excluded activities.
7(a) General rule.--Without excluding other activities which
8may not constitute doing business in this Commonwealth, a
9foreign nonprofit corporation shall not be considered to be
10doing business in this Commonwealth for the purposes of this
11subchapter by reason of carrying on in this Commonwealth any one
12or more of the following acts:
13(1) Maintaining or defending any action or
14administrative or arbitration proceeding or effecting the
15settlement thereof or the settlement of claims or disputes.
16(2) Holding meetings of its directors, other body or
17members or carrying on other activities concerning its
18internal affairs.
19(3) Maintaining bank accounts.
20(4) Maintaining offices or agencies for the transfer,
21exchange and registration of its memberships or securities,
22or appointing and maintaining trustees or depositories with
23relation to its memberships or securities.
24(5) Granting funds.
25(6) Distributing information to its members.
26(7) Creating as borrower or lender, acquiring or
27incurring obligations or mortgages or other security
28interests in real or personal property.
29(8) Securing or collecting debts or enforcing any rights
30in property securing them.
1(9) Transacting any business in interstate or foreign
2commerce.
3(10) Conducting an isolated transaction completed within
4a period of 30 days and not in the course of a number of
5repeated transactions of like nature.
6(11) Inspecting, appraising and acquiring real estate
7and mortgages and other liens thereon and personal property
8and security interests therein, and holding, leasing,
9conveying and transferring them, as fiduciary or otherwise.
10(b) Exceptions.--The specification of activities in
11subsection (a) does not establish a standard for activities that
12may subject a foreign corporation to:
13(1) Service of process under any statute or general
14rule.
15(2) Taxation by the Commonwealth or any political
16subdivision thereof.
17(3) The provisions of section 6145 (relating to
18applicability of certain safeguards to foreign domiciliary
19corporations).
20§ 6123. Requirements for foreign corporation names.
21(a) General rule.--The Department of State shall not issue a
22certificate of authority to any foreign nonprofit corporation
23that, except as provided in subsection (b), has a name that is
24rendered unavailable for use by a domestic nonprofit corporation
25by any provision of section 5303(a), (b) or (c) (relating to
26corporate name).
27(b) Exceptions.--
28(1) The provisions of section 5303(b) (relating to
29duplicate use of names) shall not prevent the issuance of a
30certificate of authority to a foreign nonprofit corporation
1setting forth a name that is not distinguishable upon the
2records of the department from the name of any other domestic
3or foreign corporation for profit or not-for-profit, or of
4any corporation or other association then registered under 54
5Pa.C.S. Ch. 5 (relating to corporate and other association
6names) or to any name reserved or registered as provided in
7this part, if the foreign nonprofit corporation applying for
8a certificate of authority files in the department a
9resolution of its board of directors or other body adopting a
10fictitious name for use in transacting business in this
11Commonwealth, which fictitious name is distinguishable upon
12the records of the department from the name of the other
13corporation or other association and from any name reserved
14or registered as provided in this part that is otherwise
15available for use by a domestic nonprofit corporation.
16(2) The provisions of section 5303(c) (relating to
17required approvals or conditions) shall not prevent the
18issuance of a certificate of authority to a foreign nonprofit
19corporation setting forth a name that is prohibited by that
20subsection if the foreign nonprofit corporation applying for
21a certificate of authority files in the department a
22resolution of its board of directors or other body adopting a
23fictitious name for use in transacting business in this
24Commonwealth that is available for use by a domestic
25nonprofit corporation.]
26Section 40. Section 6124 of Title 15 is amended to read:
27§ 6124. [Application for a certificate of authority.]
28Advertisement of registration to do business.
29[(a) General rule.--An application for a certificate of
30authority shall be executed by the foreign nonprofit corporation
1and shall set forth:
2(1) The name of the corporation.
3(2) The name of the jurisdiction under the laws of which
4it is incorporated.
5(3) The address, including street and number, if any, of
6its principal office under the laws of the jurisdiction in
7which it is incorporated.
8(4) Subject to section 109 (relating to name of
9commercial registered office provider in lieu of registered
10address), the address, including street and number, if any,
11of its proposed registered office in this Commonwealth.
12(5) A statement that it is a corporation incorporated
13for a purpose or purposes not involving pecuniary profit,
14incidental or otherwise.
15(b) Advertisement.--]A foreign nonprofit corporation shall
16officially publish notice of its intention to [apply or its
17application for a certificate of authority] register to do
18business or its registration to do business in this Commonwealth
19under Chapter 4 (relating to foreign associations). The notice
20may appear prior to or after the day on which [application is
21made to the Department of State] a registration statement is
22delivered to the department for filing and shall set forth
23[briefly]:
24(1) A statement that the corporation will [apply or has
25applied for a certificate of authority under the provisions
26of the Nonprofit Corporation Law of 1988] register or has
27registered to do business in this Commonwealth under Chapter
284.
29(2) The name of the corporation and [of the jurisdiction
30under the laws of which it is incorporated] its jurisdiction
1of formation.
2(3) The address, including street and number, if any, of
3its principal office under the laws of [the jurisdiction in
4which it is incorporated] its jurisdiction of formation.
5(4) Subject to section 109, the address, including
6street and number, if any, of its proposed registered office
7in this Commonwealth.
8(c) [Filing.--The application for a certificate of authority
9shall be filed in the Department of State.] (Reserved).
10(d) [Cross reference.--See section 134 (relating to
11docketing statement).] (Reserved).
12Section 41. Sections 6125, 6126, 6127 and 6128 of Title 15
13are repealed:
14[§ 6125. Issuance of certificate of authority.
15Upon the filing of the application for a certificate of
16authority, the foreign nonprofit corporation shall be deemed to
17hold a certificate of authority to do business in this
18Commonwealth.
19§ 6126. Amended certificate of authority.
20(a) General rule.--After receiving a certificate of
21authority, a qualified foreign nonprofit corporation may,
22subject to the provisions of this subchapter, change or correct
23any of the information set forth in its application for a
24certificate of authority or previous filings under this section
25by filing in the Department of State an application for an
26amended certificate of authority. The application shall be
27executed by the corporation and shall state:
28(1) The name under which the applicant corporation
29currently holds a certificate of authority to do business in
30this Commonwealth.
1(2) Subject to section 109 (relating to name of
2commercial registered office provider in lieu of registered
3address), the address, including street and number, if any,
4of its registered office in this Commonwealth.
5(3) The information to be changed or corrected.
6(4) If the application reflects a change in the name of
7the corporation, the application shall include a statement
8that either:
9(i) the change of name reflects a change effected in
10the jurisdiction of incorporation; or
11(ii) documents complying with section 6123(b)
12(relating to exceptions) accompany the application.
13(b) Issuance of amended certificate of authority.--Upon the
14filing of the application, the applicant corporation shall be
15deemed to hold an amended certificate of authority.
16(c) Cross reference.--See section 134 (relating to docketing
17statement).
18§ 6127. Merger, consolidation or division of qualified foreign
19corporations.
20(a) General rule.--Whenever a qualified foreign nonprofit
21corporation is a nonsurviving party to a statutory merger,
22consolidation or division permitted by the laws of the
23jurisdiction under which it is incorporated, the corporation
24surviving the merger, or the new corporation resulting from the
25consolidation or division, as the case may be, shall file in the
26Department of State a statement of merger, consolidation or
27division, which shall be executed by the surviving or new
28corporation and shall set forth:
29(1) The name of each nonsurviving qualified foreign
30nonprofit corporation.
1(2) The name of the jurisdictions under the laws of
2which each nonsurviving qualified foreign nonprofit
3corporation was incorporated.
4(3) The date on which each nonsurviving qualified
5foreign nonprofit corporation received a certificate of
6authority to do business in this Commonwealth.
7(4) A statement that the corporate existence of each
8nonsurviving qualified foreign nonprofit corporation has been
9terminated by merger, consolidation or division, as the case
10may be.
11(5) In the case of a consolidation or division or if the
12surviving corporation was a nonqualified foreign nonprofit
13corporation prior to the merger, the statements on the part
14of the surviving or new corporation required by section
156124(a) (relating to application for a certificate of
16authority).
17(b) Effect of filing.--The filing of the statement shall
18operate, as of the effective date of the merger, consolidation
19or division, to cancel the certificate of authority of each
20nonsurviving constituent corporation that was a qualified
21foreign nonprofit corporation and to qualify the surviving or
22new corporation under this subchapter. If the surviving or new
23corporation does not desire to continue as a qualified foreign
24nonprofit corporation, it may thereafter withdraw in the manner
25provided by section 6129 (relating to application for
26termination of authority).
27(c) Surviving qualified foreign corporations.--It shall not
28be necessary for a surviving corporation that was a qualified
29foreign nonprofit corporation to effect any filing under this
30subchapter with respect to a merger or division or to procure an
1amended certificate of authority to do business in this
2Commonwealth unless the name of such corporation is changed by
3the merger or division.
4(d) Cross reference.--See section 134 (relating to docketing
5statement).
6§ 6128. Revocation of certificate of authority.
7(a) General rule.--Whenever the Department of State finds
8that a qualified foreign nonprofit corporation has failed to
9secure an amended certificate of authority as required by this
10subchapter after changing its name, or has failed or refused to
11appear by its proper representatives, or otherwise to comply
12with any subpoena issued by any court having jurisdiction of the
13subject matter, or to produce books, papers, records or
14documents as required by a subpoena, or is violating any of the
15laws of this Commonwealth, or that its articles have been
16revoked or voided by its jurisdiction of incorporation, the
17department shall give notice and opportunity for hearing by
18registered or certified mail to the corporation that the default
19exists and that its certificate of authority, including any
20amendments thereof, will be revoked unless the default is cured
21within 30 days after the mailing of the notice. If the default
22is not cured within the period of 30 days, the department shall
23revoke the certificate of authority, including any amendments
24thereof, of the foreign nonprofit corporation. Upon revoking the
25certificate of authority, the department shall mail to the
26corporation, at its registered office in this Commonwealth, a
27certificate of revocation.
28(b) Effect of revocation.--Upon the issuance of the
29certificate of revocation, the authority of the corporation to
30do business in this Commonwealth shall cease and the corporation
1shall not thereafter do any business in this Commonwealth unless
2it applies for and receives a new certificate of authority.]
3Section 42. Section 6129 of Title 15 is amended to read:
4§ 6129. [Application for] Advertisement of termination of
5[authority] registration to do business.
6[(a) General rule.--Any qualified foreign nonprofit
7corporation may withdraw from doing business in this
8Commonwealth and surrender its certificate of authority by
9filing in the Department of State an application for termination
10of authority, executed by the corporation, which shall set
11forth:
12(1) The name of the corporation and, subject to section
13109 (relating to name of commercial registered office
14provider in lieu of registered address), the address,
15including street and number, if any, of its registered office
16in this Commonwealth.
17(2) The name of the jurisdiction under the laws of which
18it is incorporated.
19(3) The date on which it received a certificate of
20authority to do business in this Commonwealth.
21(4) A statement that it surrenders its certificate of
22authority to do business in this Commonwealth.
23(5) A statement that notice of its intention to withdraw
24from doing business in this Commonwealth was mailed by
25certified or registered mail to each municipal corporation in
26which the registered office or principal place of business of
27the corporation in this Commonwealth is located, and that the
28official publication required by subsection (b) has been
29effected.
30(6) The post office address, including street and
1number, if any, to which process may be sent in an action or
2proceeding upon any liability incurred before the filing of
3the application for termination of authority.
4(b) Advertisement.--]A [qualified] registered foreign
5nonprofit corporation shall, before filing [an application for
6termination of authority] a statement of withdrawal under
7section 415 (relating to voluntary withdrawal of registration),
8officially publish and mail a notice of its intention to
9withdraw from doing business in this Commonwealth in a manner
10similar to that required by section 5975(b) (relating to notice
11to creditors and taxing authorities). The notice shall set forth
12[briefly]:
13(1) The name of the corporation and [the jurisdiction
14under the laws of which it is incorporated] its jurisdiction
15of formation.
16(2) The address, including street and number, if any, of
17its principal office under the laws of its jurisdiction of
18[incorporation] formation.
19(3) Subject to section 109, the address, including
20street and number, if any, of its last registered office in
21this Commonwealth.
22(c) [Filing.--The application for termination of authority
23and the certificates or statement required by section 139
24(relating to tax clearance of certain fundamental transactions)
25shall be filed in the department. See section 134 (relating to
26docketing statement).] (Reserved).
27(d) [Effect of filing.--Upon the filing of the application
28for termination of authority, the authority of the corporation
29to do business in this Commonwealth shall cease. The termination
30of authority shall not affect any action or proceeding pending
1at the time thereof or affect any right of action arising with
2respect to the corporation before the filing of the application
3for termination of authority. Process against the corporation in
4an action upon any liability incurred before the filing of the
5application for termination of authority may be served as
6provided in 42 Pa.C.S. Ch. 53 (relating to bases of jurisdiction
7and interstate and international procedure) or as otherwise
8provided or prescribed by law.] (Reserved).
9Section 43. Sections 6130, 6131, 6141, 6142, 6143, 6144 and
10Subchapter D of Chapter 61 of Title 15 are repealed:
11[§ 6130. Change of address after withdrawal.
12(a) General rule.--Any foreign nonprofit corporation that
13has withdrawn from doing business in this Commonwealth, or its
14successor in interest, may, from time to time, change the
15address to which process may be sent in an action upon any
16liability incurred before the filing of an application for
17termination of authority by filing in the Department of State a
18statement of change of address by the withdrawn corporation
19executed by the corporation, setting forth:
20(1) The name of the withdrawn corporation and, if the
21statement is filed by a successor in interest, the name and
22capacity of the successor.
23(2) The name of the jurisdiction under the laws of which
24the corporation filing the statement is incorporated.
25(3) The former post office address, including street and
26number, if any, of the withdrawn corporation as of record in
27the department.
28(4) The new post office address, including street and
29number, if any, of the withdrawn corporation or its
30successor.
1(b) Cross reference.--See section 134 (relating to docketing
2statement).
3§ 6131. Registration of name.
4(a) General rule.--A nonqualified foreign nonprofit
5corporation may register its name under 54 Pa.C.S. Ch. 5
6(relating to corporate and other association names) if the name
7is available for use by a qualified foreign nonprofit
8corporation under section 6123 (relating to requirements for
9foreign corporation names), by filing in the Department of State
10an application for registration of name, executed by the
11corporation, which shall set forth:
12(1) The name of the corporation.
13(2) The address, including street and number, if any, of
14the corporation.
15(b) Annual renewal.--A corporation that has in effect a
16registration of its corporate name may renew the registration
17from year to year by annually filing an application for renewal
18setting forth the facts required to be set forth in an original
19application for registration. A renewal application may be filed
20between October 1 and December 31 in each year and shall extend
21the registration for the following calendar year.
22(c) Cross reference.--See section 134 (relating to docketing
23statement).
24§ 6141. Penalty for doing business without certificate of
25authority.
26(a) Right to bring actions suspended.--A nonqualified
27foreign nonprofit corporation doing business in this
28Commonwealth within the meaning of Subchapter B (relating to
29qualification) shall not be permitted to maintain any action or
30proceeding in any court of this Commonwealth until the
1corporation has obtained a certificate of authority. Except as
2provided in subsection (b), an action or proceeding may not be
3maintained in any court of this Commonwealth by any successor or
4assignee of the corporation on any right, claim or demand
5arising out of the doing of business by the corporation in this
6Commonwealth until a certificate of authority has been obtained
7by the corporation or by a corporation that has acquired all or
8substantially all of its assets.
9(a.1) Contracts, property and defense against actions
10unaffected.--The failure of a foreign nonprofit corporation to
11obtain a certificate of authority to transact business in this
12Commonwealth shall not impair the validity of any contract or
13act of the corporation, shall not prevent the corporation from
14defending any action in any court of this Commonwealth and shall
15not render escheatable any of its real or personal property.
16§ 6142. General powers and duties of qualified foreign
17corporations.
18(a) General rule.--A qualified foreign nonprofit
19corporation, so long as its certificate of authority is not
20revoked, shall enjoy the same rights and privileges as a
21domestic nonprofit corporation, but no more, and, except as in
22this subpart otherwise provided, shall be subject to the same
23liabilities, restrictions, duties and penalties now in force or
24hereafter imposed upon domestic nonprofit corporations, to the
25same extent as if it had been incorporated under this subpart.
26(b) Agricultural lands.--Interests in agricultural land
27shall be subject to the restrictions of and escheatable as
28provided by the act of April 6, 1980 (P.L.102, No.39), referred
29to as the Agricultural Land Acquisition by Aliens Law.
30§ 6143. General powers and duties of nonqualified foreign
1corporations.
2(a) Acquisition of real and personal property.--Every
3nonqualified foreign nonprofit corporation may acquire, hold,
4mortgage, lease and transfer real and personal property in this
5Commonwealth, in the same manner and subject to the same
6limitations as a qualified foreign nonprofit corporation.
7(b) Duties.--Except as provided in section 6141(a) (relating
8to penalty for doing business without certificate of authority),
9a nonqualified foreign nonprofit corporation doing business in
10this Commonwealth within the meaning of Subchapter B (relating
11to qualification) shall be subject to the same liabilities,
12restrictions, duties and penalties now or hereafter imposed upon
13a qualified foreign nonprofit corporation.
14§ 6144. Registered office of qualified foreign corporations.
15(a) General rule.--Subject to the provisions of section
165507(c) (relating to alternative procedure), every qualified
17foreign nonprofit corporation shall have, and continuously
18maintain, in this Commonwealth a registered office, which may
19but need not be the same as its place of business in this
20Commonwealth.
21(b) Change.--A qualified foreign corporation may, from time
22to time, change the address of its registered office in the
23manner provided by section 5507(b) (relating to statement of
24change of registered office).
25SUBCHAPTER D
26DOMESTICATION
27Sec.
286161. Domestication.
296162. Effect of domestication.
30§ 6161. Domestication.
1(a) General rule.--Any qualified foreign nonprofit
2corporation may become a domestic nonprofit corporation by
3filing in the Department of State articles of domestication. The
4articles of domestication, upon being filed in the department,
5shall constitute the articles of the domesticated foreign
6corporation, and it shall thereafter continue as a corporation
7which shall be a domestic nonprofit corporation subject to this
8subpart.
9(b) Articles of domestication.--The articles of
10domestication shall be executed by the corporation and shall set
11forth in the English language:
12(1) The name of the corporation. If the name is in a
13foreign language, it shall be set forth in Roman letters or
14characters or Arabic or Roman numerals.
15(2) Subject to section 109 (relating to name of
16commercial registered office provider in lieu of registered
17address), the address, including street and number, if any,
18of its registered office in this Commonwealth.
19(3) A statement that upon domestication the corporation
20will be subject to the domestic corporation provisions of the
21Nonprofit Corporation Law of 1988 and a brief statement of
22the purpose or purposes for which it is to be domesticated
23which shall be a purpose or purposes for which a domestic
24nonprofit corporation may be incorporated under Article B
25(relating to domestic nonprofit corporations generally).
26(4) The term for which upon domestication it is to
27exist, if not perpetual.
28(5) Any desired provisions relating to the manner and
29basis of reclassifying the memberships in the corporation.
30(6) A statement that the filing of articles of
1domestication and, if desired, the renunciation of the
2original charter or articles of the corporation has been
3authorized (unless its charter or other organic documents
4require a greater vote) by a majority of the votes cast by
5all members entitled to vote thereon and, if any class of
6members is entitled to vote thereon as a class, a majority of
7the votes cast in each class vote.
8(7) Any other provisions authorized by Article B to be
9set forth in the original articles.
10(c) Cross reference.--See section 134 (relating to docketing
11statement).
12§ 6162. Effect of domestication.
13As a domestic nonprofit corporation, the domesticated
14corporation shall no longer be a foreign nonprofit corporation
15for the purposes of this subpart and shall have all the powers
16and privileges and be subject to all the duties and limitations
17granted and imposed upon domestic nonprofit corporations. The
18property, franchises, debts, liens, estates, taxes, penalties
19and public accounts due the Commonwealth shall continue to be
20vested in and imposed upon the corporation to the same extent as
21if it were the successor by merger of the domesticating
22corporation with and into a domestic nonprofit corporation under
23Subchapter C of Chapter 59 (relating to merger, consolidation
24and sale of assets). Memberships in the domesticated corporation
25shall be unaffected by the domestication except to the extent,
26if any, reclassified in the articles of domestication.]
27Section 44. The definitions of "bureau" and "corporation" in
28section 7702 of Title 15 are amended to read:
29§ 7702. Definitions.
30The following words and phrases when used in this chapter
1shall have the meanings given to them in this section unless the
2context clearly indicates otherwise:
3["Bureau." The Corporation Bureau of the department.]
4"Corporation." A corporation [organized] for profit which
5has elected to be governed by this chapter.
6* * *
7Section 45. Sections 7703(b)(1), 7704(d)(1) and 7723(a) of
8Title 15 are amended to read:
9§ 7703. Corporations.
10* * *
11(b) Name.--
12(1) [The corporation may adopt any corporate name to
13indicate its cooperative character as long as the name has
14not been previously adopted.] The name of the corporation
15must comply with section 202 (relating to requirements for
16names generally).
17* * *
18§ 7704. Articles of incorporation.
19* * *
20(d) Content of articles.--The articles of incorporation
21shall be signed by the persons originally associating themselves
22together and shall state [distinctly]:
23(1) The name [by which] of the corporation [shall be
24known, which may not be the same as, or confusingly similar
25to, the name of an association or corporation existing under
26the law of the Commonwealth, the name of a foreign or alien
27association or corporation authorized to transact business in
28this Commonwealth, or a corporate name reserved or registered
29as provided by law].
30* * *
1§ 7723. Dissolution.
2(a) General rule.--A corporation may dissolve and wind up;
3may merge [or consolidate] with other corporations; and may sell
4to, lease to or exchange with other corporations all or
5substantially all of its property and assets. Except as
6otherwise provided in this chapter, these actions are governed
7by Chapter 3 (relating to entity transactions) and Subchapter C
8of Chapter 19 (relating to merger[, consolidation, share
9exchanges] liabilities and sale of assets). A workers'
10cooperative corporation which has not revoked its election to be
11governed by this chapter may not [consolidate or] merge with one
12or more corporations organized under any law other than this
13chapter. If a member objects to a corporation's merger [or
14consolidation], the member may terminate membership in the
15corporation. The price of redemption of the member's interest
16shall be the amount in the member's individual capital account
17on terms and conditions as the law, the articles of
18incorporation and the bylaws provide.
19* * *
20Section 46. Section 8203 of Title 15 is repealed:
21[§ 8203. Name.
22(a) General rule.--The name of a registered limited
23liability partnership shall:
24(1) Not be one rendered unavailable for use by a
25corporation by any provision of section 1303(b) and (c)
26(relating to corporate name).
27(2) Contain the term "company," "limited" or "limited
28liability partnership," or an abbreviation of one of those
29terms, or words or abbreviations of like import in English or
30any other language.
1(b) Reservation of name.--The exclusive right to the use of
2a name for purposes of this subchapter may be reserved and
3transferred in the manner provided in section 1305 (relating to
4reservation of corporate name).]
5Section 47. Section 8211(b) of Title 15 is amended to read:
6§ 8211. Foreign registered limited liability partnerships.
7* * *
8[(b) Registration to do business.--A foreign registered
9limited liability partnership, regardless of whether or not it
10is also a foreign limited partnership, shall be subject to
11Subchapter K of Chapter 85 (relating to foreign limited
12partnerships) as if it were a foreign limited partnership,
13except that:
14(1) Its application for registration shall state that it
15is a registered limited liability partnership.
16(2) The name under which it registers and conducts
17business in this Commonwealth shall comply with the
18requirements of section 8203 (relating to name).
19(3) Section 8582(a)(5) and (6) (relating to
20registration) shall not be applicable to the application for
21registration of a foreign limited liability partnership that
22is not a foreign limited partnership.]
23* * *
24Section 48. The definitions of "certificate of limited
25partnership," "foreign limited partnership," "nonqualified
26foreign limited partnership" and "qualified foreign limited
27partnership" in section 8503(a) of Title 15 are amended to read:
28§ 8503. Definitions and index of definitions.
29(a) Definitions.--The following words and phrases when used
30in this chapter shall have the meanings given to them in this
1section unless the context clearly indicates otherwise:
2"Certificate of limited partnership." The certificate
3referred to in section 8511 (relating to certificate of limited
4partnership) and the certificate as amended. The term includes
5any other statements or certificates permitted or required to be
6filed in the Department of State by sections 108 (relating to
7change in location or status of registered office provided by
8agent) and 138 (relating to statement of correction), Chapter 3
9(relating to entity transactions) or this part. If an amendment
10of the certificate of limited partnership or a [certificate of
11merger or division made in the manner permitted by this chapter]
12statement filed under Chapter 3 restates the certificate in its
13entirety [or if there is a certificate of consolidation],
14thenceforth the "certificate of limited partnership" shall not
15include any prior documents and any certificate issued by the
16department with respect thereto shall so state.
17* * *
18"Foreign limited partnership." A partnership formed under
19the laws of any jurisdiction other than this Commonwealth and
20having as partners one or more general partners and one or more
21limited partners, whether or not required to register under
22[Subchapter K (relating to foreign limited partnerships)]
23Chapter 4 (relating to foreign associations).
24* * *
25["Nonqualified foreign limited partnership." A foreign
26limited partnership that is not a qualified foreign limited
27partnership as defined in this section.]
28* * *
29["Qualified foreign limited partnership." A foreign limited
30partnership that is registered under Subchapter K (relating to
1foreign limited partnerships) to do business in this
2Commonwealth.]
3* * *
4Section 49. Section 8505 of Title 15 is repealed:
5[§ 8505. Name.
6(a) General rule.--The name of each limited partnership as
7set forth in its certificate of limited partnership:
8(1) Shall be expressed in Roman letters or characters or
9Arabic or Roman numerals.
10(2) Shall not be one rendered unavailable to use by a
11corporation by any provision of section 1303(b) and (c)
12(relating to corporate name).
13(3) May contain the name of a limited partner or a
14general partner. See section 8523(d) (relating to use of name
15of limited partner).
16(b) Reservation of name.--The exclusive right to the use of
17a name for purposes of this chapter may be reserved and
18transferred in the manner provided by section 1305 (relating to
19reservation of corporate name).]
20Section 50. Sections 8513(d) and 8514(a) of Title 15 are
21amended to read:
22§ 8513. Cancellation of certificate.
23* * *
24[(d) Dissolution by domestication.--Whenever a domestic
25limited partnership has domesticated itself under the laws of
26another jurisdiction by action similar to that provided by
27section 8590 (relating to domestication) and has authorized that
28action by the vote required by this chapter for the approval of
29a proposal that the limited partnership dissolve voluntarily,
30the limited partnership may surrender its certificate of limited
1partnership under the laws of this Commonwealth by filing in the
2department a certificate of cancellation under subsection (a).]
3* * *
4§ 8514. Execution of certificates.
5(a) General rule.--Each certificate or other document
6required or permitted by this chapter to be [filed in] delivered
7to the Department of State for filing shall be [executed] signed
8in the following manner:
9(1) An original certificate of limited partnership must
10be signed by all general partners named therein.
11(2) A certificate of amendment must be signed by at
12least one general partner and by each other general partner
13designated in the certificate as a new general partner.
14(3) A certificate of cancellation must be signed by all
15general partners or liquidating trustees or, if there is no
16general partner or liquidating trustee, by a majority in
17interest of the limited partners.
18(4) A certificate of change of registered office must be
19signed by a general partner.
20(5) A certificate of summary of record must be signed by
21all general partners.
22(6) A certificate of withdrawal must be signed by the
23person withdrawing.
24(7) A certificate of termination must be signed by a
25general partner.
26(8) A [certificate of merger, consolidation or division]
27statement of merger, interest exchange, conversion, division
28or domestication must be signed by a general partner.
29(9) [An application for registration as a foreign
30limited partnership] A foreign registration statement must be
1signed by a general partner.
2(10) [A certificate of amendment of registration of a
3foreign limited partnership] An amendment of a foreign
4registration statement must be signed by a general partner.
5(11) A [certificate of cancellation of registration of]
6statement of withdrawal by a foreign limited partnership must
7be signed by a general partner.
8[(12) A certificate of domestication must be signed by a
9general partner.]
10* * *
11Section 51. Subchapter F of Chapter 85 of Title 15 is
12repealed:
13[SUBCHAPTER F
14MERGER AND CONSLIDATION
15Sec.
168545. Merger and consolidation of limited partnerships
17authorized.
188546. Approval of merger or consolidation.
198547. Certificate of merger or consolidation.
208548. Effective date of merger or consolidation.
218549. Effect of merger or consolidation.
22§ 8545. Merger and consolidation of limited partnerships
23authorized.
24(a) Domestic surviving or new limited partnership.--Any two
25or more domestic limited partnerships, or any two or more
26foreign limited partnerships, or any one or more domestic
27limited partnerships and any one or more foreign limited
28partnerships, may, in the manner provided in this subchapter, be
29merged into one of the domestic limited partnerships, designated
30in this subchapter as the surviving limited partnership, or
1consolidated into a new limited partnership to be formed under
2this chapter, if the foreign limited partnerships are authorized
3by the laws of the jurisdiction under which they are organized
4to effect a merger or consolidation with a limited partnership
5of another jurisdiction.
6(b) Foreign surviving or new limited partnership.--Any one
7or more domestic limited partnerships, and any one or more
8foreign limited partnerships, may, in the manner provided in
9this subchapter, be merged into one of the foreign limited
10partnerships, designated in this subchapter as the surviving
11limited partnership, or consolidated into a new limited
12partnership to be organized under the laws of the jurisdiction
13under which one of the foreign limited partnerships is
14organized, if the laws of that jurisdiction authorize a merger
15with or consolidation into a limited partnership of another
16jurisdiction.
17(c) Business trusts and other associations.--The provisions
18of this subchapter applicable to domestic and foreign limited
19partnerships shall also be applicable to a merger or
20consolidation to which a domestic limited partnership is a party
21or in which such a partnership is the resulting entity with or
22into a domestic or foreign corporation, business trust, general
23partnership or other association. Except as otherwise provided
24by law in this or any other state, the powers and duties vested
25in and imposed upon the general partners and limited partners in
26this subchapter shall be exercised and performed by the group of
27persons under the direction of whom the business and affairs of
28the corporation, business trust or other association are managed
29and the holders or owners of shares or other interests in the
30corporation, business trust or other association, respectively,
1irrespective of the names by which the managing group and the
2holders or owners of shares or other interests are designated.
3The units into which the shares or other interests in the
4corporation, business trust or other association are divided
5shall be deemed to be partnership interests for the purposes of
6applying the provisions of this subchapter to a merger or
7consolidation involving the corporation, business trust or other
8association.
9§ 8546. Approval of merger or consolidation.
10(a) Preparation of plan of merger or consolidation.--A plan
11of merger or consolidation, as the case may be, shall be
12prepared, setting forth:
13(1) The terms and conditions of the merger or
14consolidation.
15(2) If the surviving or new partnership is or is to be a
16domestic limited partnership:
17(i) in the case of a merger, any changes desired to
18be made in the certificate of limited partnership or
19partnership agreement, which may include a restatement of
20either or both; or
21(ii) in the case of a consolidation:
22(A) all of the statements required by this
23chapter to be set forth in a restated certificate of
24limited partnership; and
25(B) the written provisions, if any, of the
26partnership agreement.
27(3) The manner and basis of converting the partnership
28interests of each limited partnership into partnership
29interests, securities or obligations of the surviving or new
30limited partnership, as the case may be, and, if any of the
1partnership interests of any of the limited partnerships that
2are parties to the merger or consolidation are not to be
3converted solely into partnership interests, securities or
4obligations of the surviving or new limited partnership, the
5partnership interests, securities or obligations of any other
6person or cash, property or rights that the holders of such
7partnership interests are to receive in exchange for, or upon
8conversion of, such partnership interests, and the surrender
9of any certificates evidencing them, which securities or
10obligations, if any, of any other person or cash, property or
11rights may be in addition to or in lieu of the partnership
12interests, securities or obligations of the surviving or new
13limited partnership.
14(4) Such other provisions as are deemed desirable.
15(b) Post-adoption amendment of plan of merger or
16consolidation.--A plan of merger or consolidation may contain a
17provision that the general partners of the constituent limited
18partnerships may amend the plan at any time prior to its
19effective date, except that an amendment made subsequent to any
20adoption of the plan by the limited partners of any constituent
21domestic limited partnership shall not change:
22(1) The amount or kind of partnership interests,
23obligations, cash, property or rights to be received in
24exchange for or on conversion of all or any of the
25partnership interests of the constituent domestic limited
26partnership adversely to the holders of those partnership
27interests.
28(2) Any term of the certificate of limited partnership
29or partnership agreement of the surviving or new limited
30partnership as it is to be in effect immediately following
1consummation of the merger or consolidation except provisions
2that may be amended without the approval of the limited
3partners.
4(3) Any of the other terms and conditions of the plan if
5the change would adversely affect the holders of any
6partnership interests of the constituent domestic limited
7partnership.
8(c) Proposal of merger or consolidation.--Every merger or
9consolidation shall be proposed in the case of each domestic
10limited partnership by the adoption by the general partners of a
11resolution approving the plan of merger or consolidation. Except
12where the approval of the limited partners is unnecessary under
13this subchapter or the partnership agreement, the general
14partners shall submit the plan to a vote of the limited partners
15entitled to vote thereon at a regular or special meeting of the
16limited partners.
17(d) Party to plan.--An association that approves a plan in
18its capacity as a partner or creditor of a merging or
19consolidating limited partnership, or that furnishes all or a
20part of the consideration contemplated by a plan, does not
21thereby become a party to the merger or consolidation for the
22purposes of this subchapter.
23(e) Notice of meeting of limited partners.--Notwithstanding
24any other provision of the partnership agreement, written notice
25of the meeting of limited partners called for the purpose of
26considering the proposed plan shall be given to each limited
27partner of record, whether or not entitled to vote thereon, of
28each domestic limited partnership that is a party to the
29proposed merger or consolidation. There shall be included in, or
30enclosed with, the notice a copy of the proposed plan or a
1summary thereof. The provisions of this subsection may not be
2relaxed by the certificate of limited partnership or partnership
3agreement.
4(f) Adoption of plan by limited partners.--The plan of
5merger or consolidation shall be adopted upon receiving a
6majority of the votes cast by all limited partners, if any,
7entitled to vote thereon of each of the domestic limited
8partnerships that is a party to the proposed merger or
9consolidation and, if any class of limited partners is entitled
10to vote thereon as a class, a majority of the votes cast in each
11class vote. A proposed plan of merger or consolidation shall not
12be deemed to have been adopted by the limited partnership unless
13it has also been approved by the general partners, regardless of
14the fact that the general partners have directed or suffered the
15submission of the plan to the limited partners for action.
16(g) Adoption by general partners.--
17(1) Unless otherwise required by the partnership
18agreement, a plan of merger or consolidation shall not
19require the approval of the limited partners of a limited
20partnership if:
21(i) the plan, whether or not the limited partnership
22is the surviving limited partnership, does not alter the
23status of the limited partnership as a domestic limited
24partnership or alter in any respect the provisions of its
25certificate of limited partnership or partnership
26agreement, except changes that may be made without action
27by the limited partners; and
28(ii) each partnership interest outstanding
29immediately prior to the effective date of the merger or
30consolidation is to continue as or to be converted into,
1except as may be otherwise agreed by the holder thereof,
2an identical partnership interest in the surviving or new
3limited partnership after the effective date of the
4merger or consolidation.
5(2) If a merger or consolidation is effected pursuant to
6paragraph (1), the plan of merger or consolidation shall be
7deemed adopted by the limited partnership when it has been
8adopted by the general partners pursuant to subsection (c).
9(h) Termination of plan.--Prior to the time when a merger or
10consolidation becomes effective, the merger or consolidation may
11be terminated pursuant to provisions therefor, if any, set forth
12in the plan. If a certificate of merger or consolidation has
13been filed in the department prior to the termination, a
14certificate of termination executed by each limited partnership
15that is a party to the merger or consolidation, unless the plan
16permits termination by less than all of the limited
17partnerships, in which case the certificate shall be executed on
18behalf of the limited partnership exercising the right to
19terminate, shall be filed in the department. The certificate of
20termination shall set forth:
21(1) A copy of the certificate of merger or consolidation
22relating to the plan that is terminated.
23(2) A statement that the plan has been terminated in
24accordance with the provisions therefor set forth therein.
25See sections 134 (relating to docketing statement), 135
26(relating to requirements to be met by filed documents), 138
27(relating to statement of correction) and 8514 (relating to
28execution of certificates).
29(i) Authorization by foreign limited partnerships.--The plan
30of merger or consolidation shall be authorized, adopted or
1approved by each foreign limited partnership that desires to
2merge or consolidate in accordance with the laws of the
3jurisdiction in which it is organized.
4(j) Reference to outside facts.--Any of the terms of a plan
5of merger or consolidation may be made dependent upon facts
6ascertainable outside of the plan if the manner in which the
7facts will operate upon the terms of the plan is set forth in
8the plan. Such facts may include, without limitation, actions or
9events within the control of or determinations made by a party
10to the plan or a representative of a party to the plan.
11§ 8547. Certificate of merger or consolidation.
12(a) General rule.--Upon the adoption of the plan of merger
13or consolidation by the limited partnerships desiring to merge
14or consolidate, as provided in this subchapter, a certificate of
15merger or a certificate of consolidation, as the case may be,
16shall be executed by each limited partnership and shall, subject
17to section 109 (relating to name of commercial registered office
18provider in lieu of registered address), set forth:
19(1) The name and the location of the registered office,
20including street and number, if any, of the domestic
21surviving or new limited partnership or, in the case of a
22foreign surviving or new limited partnership, the name of the
23limited partnership and its jurisdiction of organization,
24together with either of the following:
25(i) If a qualified foreign limited partnership, the
26address, including street and number, if any, of its
27registered office in this Commonwealth.
28(ii) If a nonqualified foreign limited partnership,
29the address, including street and number, if any, of its
30principal office under the laws of the jurisdiction in
1which it is organized.
2(2) The name and address, including street and number,
3if any, of the registered office of each other domestic
4limited partnership and qualified foreign limited partnership
5that is a party to the plan.
6(3) If the plan is to be effective on a specified date,
7the hour, if any, and the month, day and year of the
8effective date.
9(4) The manner in which the plan was adopted by each
10domestic limited partnership and, if one or more foreign
11limited partnerships are parties to the plan, the fact that
12the plan was authorized, adopted or approved, as the case may
13be, by each of the foreign limited partnerships in accordance
14with the laws of the jurisdiction in which it is organized.
15(5) Except as provided in subsection (b), the plan of
16merger or consolidation.
17(b) Omission of certain provisions of plan of merger or
18consolidation.--A certificate of merger or consolidation may
19omit all provisions of the plan of merger or consolidation
20except provisions, if any, that are intended to amend or
21constitute the operative provisions of the certificate of
22limited partnership of a limited partnership as in effect
23subsequent to the effective date of the plan, if the certificate
24of merger or consolidation states that the full text of the plan
25is on file at the principal place of business of the surviving
26or new limited partnership and states the address thereof. A
27limited partnership that takes advantage of this subsection
28shall furnish a copy of the full text of the plan, on request
29and without cost, to any partner of any limited partnership that
30was a party to the plan and, unless all parties to the plan had
1fewer than 30 partners each, on request and at cost to any other
2person.
3(c) Filing of certificate of merger or consolidation.--The
4certificate of merger or certificate of consolidation, as the
5case may be, and the certificates or statement, if any, required
6by section 139 (relating to tax clearance of certain fundamental
7transactions) shall be filed in the department.
8(d) Cross references.--See sections 134 (relating to
9docketing statement) and 8514 (relating to execution of
10certificates).
11§ 8548. Effective date of merger or consolidation.
12Upon the filing of the certificate of merger or the
13certificate of consolidation in the Department of State or upon
14the effective date specified in the plan of merger or
15consolidation, whichever is later, the merger or consolidation
16shall be effective. The merger or consolidation of one or more
17domestic limited partnerships into a foreign limited partnership
18shall be effective according to the provisions of law of the
19jurisdiction in which the foreign limited partnership is
20organized, but not until a certificate of merger or certificate
21of consolidation has been adopted and filed, as provided in this
22subchapter.
23§ 8549. Effect of merger or consolidation.
24(a) Single surviving or new limited partnership.--Upon the
25merger or consolidation becoming effective, the several limited
26partnerships parties to the plan of merger or consolidation
27shall be a single limited partnership which, in the case of a
28merger, shall be the limited partnership designated in the plan
29of merger as the surviving limited partnership and, in the case
30of a consolidation, shall be the new limited partnership
1provided for in the plan of consolidation. The separate
2existence of all limited partnerships parties to the plan of
3merger or consolidation shall cease, except that of the
4surviving limited partnership, in the case of a merger.
5(b) Property rights.--All the property, real, personal and
6mixed, of each of the limited partnerships parties to the plan
7of merger or consolidation, and all debts due on whatever
8account to any of them, as well as all other things and causes
9of action belonging to any of them, shall be deemed to be vested
10in and shall belong to the surviving or new limited partnership,
11as the case may be, without further action, and the title to any
12real estate, or any interest therein, vested in any of the
13limited partnerships shall not revert or be in any way impaired
14by reason of the merger or consolidation. The surviving or new
15limited partnership shall thenceforth be responsible for all the
16liabilities of each of the limited partnerships so merged or
17consolidated. Liens upon the property of the merging or
18consolidating limited partnerships shall not be impaired by the
19merger or consolidation, and any claim existing or action or
20proceeding pending by or against any of the limited partnerships
21may be prosecuted to judgment as if the merger or consolidation
22had not taken place or the surviving or new limited partnership
23may be proceeded against or substituted in its place.
24(c) Taxes.--Any taxes, interest, penalties and public
25accounts of the Commonwealth claimed against any of the merging
26or consolidating limited partnerships that are settled, assessed
27or determined prior to or after the merger or consolidation
28shall be the liability of the surviving or new limited
29partnership and, together with interest thereon, shall be a lien
30against the property, both real and personal, of the surviving
1or new limited partnership.
2(d) Certificate of limited partnership.--In the case of a
3merger, the certificate of limited partnership of the surviving
4domestic limited partnership, if any, shall be deemed to be
5amended to the extent, if any, that changes in its certificate
6of limited partnership are stated in the plan of merger. In the
7case of a consolidation into a domestic limited partnership, the
8statements that are set forth in the plan of consolidation, or
9certificate of limited partnership set forth therein, shall be
10deemed to be the certificate of limited partnership of the new
11limited partnership.]
12Section 52. Section 8571(c) of Title 15 is amended to read:
13§ 8571. Nonjudicial dissolution.
14* * *
15[(c) Dissolution by domestication.--Whenever a domestic
16limited partnership has domesticated itself under the laws of
17another jurisdiction by action similar to that provided by
18section 8590 (relating to domestication) and has authorized that
19action in the manner required by this subchapter for the
20approval of a proposal that the partnership dissolve
21voluntarily, the partnership may surrender its certificate of
22limited partnership under the laws of this Commonwealth by
23filing in the department a certificate of cancellation under
24section 8513 (relating to cancellation of certificate). If the
25partnership, as domesticated in the other jurisdiction,
26registers to do business in this Commonwealth either prior to or
27simultaneously with the filing of the certificate of
28cancellation under this subsection, the partnership shall not be
29required to file with the certificate of cancellation the tax
30clearance certificates that would otherwise be required by
1section 139 (relating to tax clearance of certain fundamental
2transactions).]
3* * *
4Section 53. Subchapters J and K of Chapter 85 of Title 15
5are repealed:
6[SUBCHAPTER J
7DIVISION
8Sec.
98576. Division authorized.
108577. Proposal and adoption of plan of division.
118578. Division without approval of limited partners.
128579. Certificate of division.
138580. Effect of division.
14§ 8576. Division authorized.
15(a) Division of domestic limited partnership.--Any domestic
16limited partnership may, in the manner provided in this
17subchapter, be divided into two or more domestic limited
18partnerships organized or to be organized under this chapter or
19into one or more domestic limited partnerships and one or more
20foreign limited partnerships to be organized under the laws of
21another jurisdiction or jurisdictions or into two or more
22foreign limited partnerships if the laws of the other
23jurisdictions authorize the division.
24(b) Division of foreign limited partnership.--Any foreign
25limited partnership may, in the manner provided in this
26subchapter, be divided into one or more domestic limited
27partnerships to be organized under this chapter and one or more
28foreign limited partnerships organized or to be organized under
29the laws of another jurisdiction or jurisdictions or into two or
30more domestic limited partnerships if the foreign limited
1partnership is authorized under the laws of the jurisdiction
2under which it is organized to effect a division.
3(c) Surviving and new limited partnerships.--The limited
4partnership effecting a division, if it survives the division,
5is designated in this subchapter as the surviving limited
6partnership. All limited partnerships originally organized by a
7division are designated in this subchapter as new limited
8partnerships. The surviving limited partnership, if any, and the
9new limited partnership or partnerships are collectively
10designated in this subchapter as the resulting limited
11partnerships.
12§ 8577. Proposal and adoption of plan of division.
13(a) Preparation of plan.--A plan of division shall be
14prepared, setting forth:
15(1) The terms and conditions of the division, including
16the manner and basis of:
17(i) The reclassification of the partnership
18interests in the surviving limited partnership, if there
19be one, and, if any of the partnership interests in the
20dividing limited partnership are not to be converted
21solely into partnership interests or other securities or
22obligations of one or more of the resulting limited
23partnerships, the partnership interests or other
24securities or obligations of any other person or cash,
25property or rights that the holders of the partnership
26interests are to receive in exchange for or upon
27conversion of the partnership interests and the surrender
28of any certificates evidencing them, which securities or
29obligations, if any, of any other person or cash,
30property or rights may be in addition to or in lieu of
1partnership interests or other securities or obligations
2of one or more of the resulting limited partnerships.
3(ii) The disposition of the partnership interests
4and other securities or obligations, if any, of the new
5limited partnership or partnerships resulting from the
6division.
7(2) A statement that the dividing limited partnership
8will or will not survive the division.
9(3) Any changes desired to be made in the certificate of
10limited partnership of the surviving limited partnership, if
11there be one, including a restatement of the certificate.
12(4) The certificates of limited partnership required by
13subsection (c).
14(5) Such other provisions as are deemed desirable.
15(b) Reference to outside facts.--Any of the terms of the
16plan may be made dependent upon facts ascertainable outside of
17the plan if the manner in which the facts will operate upon the
18terms of the plan is set forth in the plan. Such facts may
19include, without limitation, actions or events within the
20control of or determinations made by the dividing limited
21partnership or a representative of the dividing limited
22partnership.
23(c) Certificates of limited partnership of new limited
24partnerships.--There shall be included in or annexed to the plan
25of division:
26(1) Certificates of limited partnership, which shall
27contain all of the statements required by this chapter to be
28set forth in a restated certificate of limited partnership
29for each of the new domestic limited partnerships, if any,
30resulting from the division.
1(2) Certificates of limited partnership or other
2organizational documents for each of the new foreign limited
3partnerships, if any, resulting from the division.
4(d) Proposal and adoption.--Except as otherwise provided in
5section 8578 (relating to division without approval of limited
6partners), the plan of division shall be proposed and adopted
7and may be amended after its adoption and termination by a
8domestic limited partnership in the manner provided for the
9proposal, adoption, amendment and termination of a plan of
10merger in Subchapter F (relating to merger and consolidation),
11except section 8546(g) (relating to approval of merger or
12consolidation) or, if the dividing limited partnership is a
13foreign limited partnership, in accordance with the laws of the
14jurisdiction in which it is organized. There shall be included
15in or enclosed with the notice of the meeting of limited
16partners to act on the plan, a copy or a summary of the plan.
17(f) Rights of holders of indebtedness.--If any such debt
18securities, notes, similar evidences of indebtedness, indentures
19or other contracts were issued, incurred or executed by the
20dividing limited partnership before August 21, 2001, and have
21not been amended subsequent to that date, the liability of the
22dividing limited partnership thereunder shall not be affected by
23the division nor shall the rights of the obligees thereunder be
24impaired by the division, and each of the resulting limited
25partnerships may be proceeded against or substituted in place of
26the dividing limited partnership as joint and several obligors
27on such liability, regardless of any provision of the plan of
28division apportioning the liabilities of the dividing limited
29partnership.
30(g) Special requirements.--If any provision of the
1certificate of limited partnership or partnership agreement of a
2dividing domestic limited partnership adopted before February 5,
31995, requires for the proposal or adoption of a plan of merger
4or consolidation a specific number or percentage of votes of
5general or limited partners or other special procedures, the
6plan of division shall not be proposed or adopted by the general
7or limited partners without that number or percentage of votes
8or compliance with the other special procedures.
9§ 8578. Division without approval of limited partners.
10Unless otherwise restricted by its partnership agreement, a
11plan of division that does not alter the state of organization
12of a limited partnership nor amend in any respect the provisions
13of its certificate of limited partnership or partnership
14agreement (except amendments that may be made without action by
15the limited partners) shall not require the approval of the
16limited partners of the limited partnership if:
17(1) the dividing limited partnership survives the
18division and all the partnership interests and other
19securities and obligations, if any, of all new limited
20partnerships resulting from the plan are owned solely by the
21surviving limited partnership; or
22(2) the transfers of assets effected by the division, if
23effected by means of a sale, lease, exchange or other
24disposition, would not require the approval of the limited
25partners.
26§ 8579. Certificate of division.
27(a) Contents.--Upon the adoption of a plan of division by
28the limited partnership desiring to divide, as provided in this
29subchapter, a certificate of division shall be executed by the
30limited partnership and shall, subject to section 109 (relating
1to name of commercial registered office provider in lieu of
2registered address), set forth:
3(1) The name and the location of the registered office,
4including street and number, if any, of the dividing domestic
5limited partnership or, in the case of a dividing foreign
6limited partnership, the name of the limited partnership and
7the jurisdiction in which it is organized, together with
8either:
9(i) If a qualified foreign limited partnership, the
10address, including street and number, if any, of its
11registered office in this Commonwealth.
12(ii) If a nonqualified foreign limited partnership,
13the address, including street and number, if any, of its
14principal office under the laws of that jurisdiction.
15(2) The statute under which the dividing limited
16partnership was organized and the date of organization.
17(3) A statement that the dividing limited partnership
18will or will not survive the division.
19(4) The name and the address, including street and
20number, if any, of the registered office of each new domestic
21limited partnership or qualified foreign limited partnership
22resulting from the division.
23(5) If the plan is to be effective on a specific date,
24the hour, if any, and the month, day and year of the
25effective date.
26(6) The manner in which the plan was adopted by the
27limited partnership.
28(7) The plan of division.
29(b) Filing.--The certificate of division and the
30certificates or statement, if any, required by section 139
1(relating to tax clearance of certain fundamental transactions)
2shall be filed in the Department of State.
3(c) Effective date of certificate of division.--Upon the
4filing of a certificate of division in the Department of State
5or upon the effective date specified in the plan of division,
6whichever is later, the division shall become effective. The
7division of a domestic limited partnership into one or more
8foreign limited partnerships or the division of a foreign
9limited partnership shall be effective according to the laws of
10the jurisdictions where the foreign limited partnerships are or
11are to be organized, but not until a certificate of division has
12been adopted and filed as provided in this subchapter.
13(d) Cross references.--See sections 134 (relating to
14docketing statement), 135 (relating to requirements to be met by
15filed documents) and 8514 (relating to execution of
16certificates).
17§ 8580. Effect of division.
18(a) Multiple resulting limited partnerships.--Upon the
19division becoming effective, the dividing limited partnership
20shall be subdivided into the distinct and independent resulting
21limited partnerships named in the plan of division, and, if the
22dividing limited partnership is not to survive the division, the
23existence of the dividing limited partnership shall cease. The
24resulting limited partnerships, if they are domestic limited
25partnerships, shall not thereby acquire authority to engage in
26any business or exercise any right that a limited partnership
27may not be organized under this chapter to engage in or
28exercise. Any resulting foreign limited partnership that is
29stated in the certificate of division to be a qualified foreign
30limited partnership shall be a qualified foreign limited
1partnership under Subchapter K (relating to foreign limited
2partnerships), and the certificate of division shall be deemed
3to be the application for registration as a foreign limited
4partnership of the limited partnership.
5(b) Property rights; allocations of assets and
6liabilities.--
7(1) (i) All the property, real, personal and mixed, of
8the dividing limited partnership, and all debts due on
9whatever account to it, including subscriptions for
10partnership interests or other causes of action belonging
11to it, shall, except as otherwise provided in paragraph
12(2), to the extent allocations of assets are contemplated
13by the plan of division, be deemed without further action
14to be allocated to and vested in the resulting limited
15partnerships on such a manner and basis and with such
16effect as is specified in the plan, or per capita among
17the resulting limited partnerships, as tenants in common,
18if no specification is made in the plan, and the title to
19any real estate or interest therein vested in any of the
20limited partnerships shall not revert or be in any way
21impaired by reason of the division.
22(ii) Upon the division becoming effective, the
23resulting limited partnerships shall each thenceforth be
24responsible as separate and distinct limited partnerships
25only for such liabilities as each limited partnership may
26undertake or incur in its own name but shall be liable
27for the liabilities of the dividing limited partnership
28in the manner and on the basis provided in subparagraphs
29(iv) and (v).
30(iii) Liens upon the property of the dividing
1limited partnership shall not be impaired by the
2division.
3(iv) To the extent allocations of liabilities are
4contemplated by the plan of division, the liabilities of
5the dividing limited partnership shall be deemed without
6further action to be allocated to and become the
7liabilities of the resulting limited partnerships on such
8a manner and basis and with such effect as is specified
9in the plan; and one or more but less than all of the
10resulting limited partnerships shall be free of the
11liabilities of the dividing limited partnership to the
12extent, if any, specified in the plan if in either case:
13(A) no fraud of partners or violation of law
14shall be effected thereby; and
15(B) the plan does not constitute a fraudulent
16transfer under 12 Pa.C.S. Ch. 51 (relating to
17fraudulent transfers).
18(v) If the conditions in subparagraph (iv) for
19freeing one or more of the resulting limited partnerships
20from the liabilities of the dividing limited partnership,
21or for allocating some or all of the liabilities of the
22dividing limited partnership, are not satisfied, the
23liabilities of the dividing limited partnership as to
24which those conditions are not satisfied shall not be
25affected by the division nor shall the rights of
26creditors thereunder or of any person dealing with the
27limited partnership be impaired by the division, and any
28claim existing or action or proceeding pending by or
29against the limited partnership with respect to those
30liabilities may be prosecuted to judgment as if the
1division had not taken place, or the resulting limited
2partnerships may be proceeded against or substituted in
3place of the dividing limited partnership as joint and
4several obligors on those liabilities, regardless of any
5provision of the plan of division apportioning the
6liabilities of the dividing limited partnership.
7(vi) The conditions in subparagraph (iv) for freeing
8one or more of the resulting limited partnerships from
9the liabilities of the dividing limited partnership and
10for allocating some or all of the liabilities of the
11dividing limited partnership shall be conclusively deemed
12to have been satisfied if the plan of division has been
13approved by the Pennsylvania Public Utility Commission in
14a final order issued after August 21, 2001, that has
15become not subject to further appeal.
16(2) (i) The allocation of any fee or freehold interest
17or leasehold having a remaining term of 30 years or more
18in any tract or parcel of real property situate in this
19Commonwealth owned by a dividing limited partnership
20(including property owned by a foreign limited
21partnership dividing solely under the law of another
22jurisdiction) to a new limited partnership resulting from
23the division shall not be effective until one of the
24following documents is filed in the office for the
25recording of deeds of the county, or each of them, in
26which the tract or parcel is situated:
27(A) A deed, lease or other instrument of
28confirmation describing the tract or parcel.
29(B) A duly executed duplicate original copy of
30the certificate of division.
1(C) A copy of the certificate of division
2certified by the Department of State.
3(D) A declaration of acquisition setting forth
4the value of real estate holdings in the county of
5the limited partnership as an acquired company.
6(ii) The provisions of 75 Pa.C.S. § 1114 (relating
7to transfer of vehicle by operation of law) shall not be
8applicable to an allocation of ownership of any motor
9vehicle, trailer or semitrailer to a new limited
10partnership under this section or under a similar law of
11any other jurisdiction, but any such allocation shall be
12effective only upon compliance with the requirements of
1375 Pa.C.S. § 1116 (relating to issuance of new
14certificate following transfer).
15(3) It shall not be necessary for a plan of division to
16list each individual asset or liability of the dividing
17limited partnership to be allocated to a new limited
18partnership so long as those assets and liabilities are
19described in a reasonable and customary manner.
20(4) Each new limited partnership shall hold any assets
21and liabilities allocated to it as the successor to the
22dividing limited partnership, and those assets and
23liabilities shall not be deemed to have been assigned to the
24new limited partnership in any manner, whether directly or
25indirectly or by operation of law.
26(c) Taxes.--Any taxes, interest, penalties and public
27accounts of the Commonwealth claimed against the dividing
28limited partnership that are settled, assessed or determined
29prior to or after the division shall be the liability of any of
30the resulting limited partnerships and, together with interest
1thereon, shall be a lien against the franchises and property,
2both real and personal, of all the limited partnerships. Upon
3the application of the dividing limited partnership, the
4Department of Revenue, with the concurrence of the Office of
5Employment Security of the Department of Labor and Industry,
6shall release one or more, but less than all, of the resulting
7limited partnerships from liability and liens for all taxes,
8interest, penalties and public accounts of the dividing limited
9partnership due the Commonwealth for periods prior to the
10effective date of the division if those departments are
11satisfied that the public revenues will be adequately secured.
12(d) Certificate of limited partnership of surviving limited
13partnership.--The certificate of limited partnership of the
14surviving limited partnership, if there be one, shall be deemed
15to be amended to the extent, if any, that changes in its
16certificate of limited partnership are stated in the plan of
17division.
18(e) Certificates of limited partnership of new limited
19partnerships.--The statements that are set forth in the plan of
20division with respect to each new domestic limited partnership
21and that are required or permitted to be set forth in a restated
22certificate of limited partnership of limited partnerships
23organized under this chapter, or the certificate of limited
24partnership of each new limited partnership set forth therein,
25shall be deemed to be the certificate of limited partnership of
26each new limited partnership.
27(f) Disposition of partnership interests.--Unless otherwise
28provided in the plan, the partnership interests and other
29securities or obligations, if any, of each new limited
30partnership resulting from the division shall be distributable
1to:
2(1) the surviving limited partnership if the dividing
3limited partnership survives the division; or
4(2) the partners of the dividing limited partnership in
5the proportions in which the partners share in distributions,
6in any other case.
7(g) Conflict of laws.--It is the intent of the General
8Assembly that:
9(1) The effect of a division of a domestic limited
10partnership shall be governed solely by the laws of this
11Commonwealth and any other jurisdiction under the laws of
12which any of the resulting limited partnerships is organized.
13(2) The effect of a division on the assets and
14liabilities of the dividing limited partnership shall be
15governed solely by the laws of this Commonwealth and any
16other jurisdiction under the laws of which any of the
17resulting limited partnerships is organized.
18(3) The validity of any allocations of assets or
19liabilities by a plan of division of a domestic limited
20partnership, regardless of whether or not any of the new
21limited partnerships is a foreign limited partnership, shall
22be governed solely by the laws of this Commonwealth.
23(4) In addition to the express provisions of this
24subsection, this subchapter shall otherwise generally be
25granted the protection of full faith and credit under the
26Constitution of the United States.
27SUBCHAPTER K
28FOREIGN LIMITED PARTNERSHIPS
29Sec.
308581. Governing law.
18582. Registration.
28583. Effect of filing.
38584. Name.
48585. Changes and amendments.
58586. Cancellation of registration.
68587. Doing business without registration.
78588. Action by Attorney General.
88589. General powers and duties of qualified foreign limited
9partnerships.
108590. Domestication.
11§ 8581. Governing law.
12Subject to the Constitution of Pennsylvania:
13(1) The laws of the jurisdiction under which a foreign
14limited partnership is organized govern its organization and
15internal affairs and the liability of its limited partners.
16(2) A foreign limited partnership may not be denied
17registration by reason of any difference between those laws
18and the laws of this Commonwealth.
19§ 8582. Registration.
20(a) General rule.--Before doing business in this
21Commonwealth, a foreign limited partnership shall register under
22this subchapter. In order to register, a foreign limited
23partnership shall execute and file in the Department of State an
24application for registration as a foreign limited partnership
25setting forth:
26(1) The name of the foreign limited partnership and, if
27different, the name under which it proposes to register and
28do business in this Commonwealth.
29(2) The jurisdiction and date of its formation.
30(3) Subject to section 109 (relating to name of
1commercial registered office provider in lieu of registered
2address), the address, including street and number, if any,
3of its registered office.
4(4) The address of the office required to be maintained
5in the jurisdiction of its organization by the laws of that
6jurisdiction or, if not so required, of the principal office
7of the foreign limited partnership.
8(5) The name and business address of each general
9partner.
10(6) The address of the office at which is kept a list of
11the names and addresses of the limited partners and their
12capital contributions, together with an undertaking by the
13foreign limited partnership to keep those records until the
14registration of the foreign limited partnership in this
15Commonwealth is canceled or withdrawn.
16(b) Exceptions.--None of the activities described in section
174122 (relating to excluded activities) shall be considered doing
18business in this Commonwealth for the purposes of this
19subchapter.
20(c) Cross references.--See sections 134 (relating to
21docketing statement) and 8514 (relating to execution of
22certificates).
23§ 8583. Effect of filing.
24Upon the filing of the application for registration as a
25foreign limited partnership, the partnership shall be authorized
26to do business in this Commonwealth.
27§ 8584. Name.
28(a) General rule.--A foreign limited partnership may
29register with the Department of State under any name (whether or
30not it is the name under which it is registered in its
1jurisdiction of organization) that could be used by a domestic
2limited partnership.
3(b) Cross reference.--See section 8505 (relating to name).
4§ 8585. Changes and amendments.
5(a) General rule.--If any arrangements or other facts
6described in the application for registration of a foreign
7limited partnership have changed, making the application
8inaccurate in any material respect, the foreign limited
9partnership shall promptly execute and file in the Department of
10State a certificate of amendment of registration setting forth:
11(1) The name under which the foreign limited partnership
12is registered to do business in this Commonwealth.
13(2) Subject to section 109 (relating to name of
14commercial registered office provider in lieu of registered
15address), the address, including street and number, if any,
16of its registered office in this Commonwealth.
17(3) The arrangements or other facts that have changed.
18(b) Effect of filing.--The application for registration as a
19foreign limited partnership shall be amended upon filing of the
20certificate of amendment of registration in the department.
21(c) Cross references.--See sections 134 (relating to
22docketing statement), 138 (relating to statement of correction)
23and 8514 (relating to execution of certificates).
24§ 8586. Cancellation of registration.
25(a) General rule.--A qualified foreign limited partnership
26may cancel its registration by executing and filing in the
27Department of State a certificate of cancellation of
28registration setting forth:
29(1) The name under which the foreign limited partnership
30is registered to do business in this Commonwealth.
1(2) Subject to section 109 (relating to name of
2commercial registered office provider in lieu of registered
3address), the address, including street and number, if any,
4of its last registered office in this Commonwealth.
5(3) The name of the jurisdiction under the laws of which
6it is organized.
7(4) The date on which it registered to do business in
8this Commonwealth.
9(5) A statement that it withdraws from doing business in
10this Commonwealth.
11(6) A statement that notice of its intention to withdraw
12from doing business in this Commonwealth was mailed by
13certified or registered mail to each municipal corporation in
14which the registered office or principal place of business of
15the foreign limited partnership in this Commonwealth is
16located.
17(7) The post office address, including street and
18number, if any, to which process may be sent in an action
19upon any liability incurred before the filing of the
20certificate of cancellation of registration.
21(b) Filing.--The certificate of cancellation of registration
22and the certificates or statement required by section 139
23(relating to tax clearance of certain fundamental transactions)
24shall be filed in the department.
25(c) Effect of filing.--Upon the filing of the certificate of
26cancellation of registration, the authority of the foreign
27limited partnership to do business in this Commonwealth shall
28cease. The termination of authority shall not affect any action
29pending at the time thereof or affect any right of action
30arising with respect to the foreign limited partnership before
1the filing of the certificate of cancellation of registration.
2Process against the foreign limited partnership in an action
3upon any liability incurred before the filing of the certificate
4of cancellation of registration may be served as provided in 42
5Pa.C.S. Ch. 53 (relating to bases of jurisdiction and interstate
6and international procedure) or as otherwise provided or
7prescribed by law.
8(d) Cross references.--See sections 134 (relating to
9docketing statement) and 8514 (relating to execution of
10certificates).
11§ 8587. Doing business without registration.
12(a) Maintenance of actions or proceedings prohibited.--A
13nonqualified foreign limited partnership doing business in this
14Commonwealth may not maintain any action or proceeding in any
15court of this Commonwealth until it has registered under this
16subchapter, nor, except as provided in subsection (b), shall any
17action or proceeding be maintained in any court of this
18Commonwealth on any right, claim or demand arising out of the
19doing of business by the foreign limited partnership in this
20Commonwealth by any successor, assignee or acquiror of all or
21substantially all of the assets of the foreign limited
22partnership that is a foreign corporation for profit or not-for-
23profit or a foreign limited partnership until such foreign
24corporation or foreign limited partnership has been authorized
25to do business in this Commonwealth.
26(b) Contracts, property and defense of actions unaffected.--
27The failure of a foreign limited partnership to register under
28this subchapter shall not impair the validity of any contract or
29act of the foreign limited partnership, shall not prevent the
30foreign limited partnership from defending any action in any
1court of this Commonwealth and shall not render escheatable any
2of its real or personal property.
3(c) Liability of limited partner.--A limited partner of a
4foreign limited partnership is not liable as a general partner
5of the foreign limited partnership solely by reason of the
6foreign limited partnership having done business in this
7Commonwealth without registration under this subchapter.
8(d) Acquisition of real and personal property.--Every
9nonqualified foreign limited partnership may acquire, hold,
10mortgage, lease and transfer real and personal property in this
11Commonwealth in the same manner and subject to the same
12limitations as a qualified foreign limited partnership.
13(e) Duties.--Except as provided in subsection (a), a
14nonqualified foreign limited partnership doing business in this
15Commonwealth shall be subject to the same liabilities,
16restrictions, duties and penalties now or hereafter imposed upon
17a qualified foreign limited partnership.
18§ 8588. Action by Attorney General.
19The Attorney General may bring an action to restrain a
20foreign limited partnership from doing business in this
21Commonwealth in violation of this subchapter.
22§ 8589. General powers and duties of qualified foreign limited
23partnerships.
24(a) General rule.--A qualified foreign limited partnership,
25so long as its registration under this subchapter is not
26canceled or revoked, shall enjoy the same rights and privileges
27as a domestic limited partnership, but no more, and, except as
28in this part otherwise provided, shall be subject to the same
29liabilities, restrictions, duties and penalties now in force or
30hereafter imposed upon domestic limited partnerships, to the
1same extent as if it had been formed under this chapter.
2(b) Agricultural lands.--Interests in agricultural land
3shall be subject to the restrictions of, and escheatable as
4provided by, the act of April 6, 1980 (P.L.102, No.39), referred
5to as the Agricultural Land Acquisition by Aliens Law.
6§ 8590. Domestication.
7(a) General rule.--Any qualified foreign limited partnership
8may become a domestic limited partnership by filing in the
9Department of State a certificate of domestication. The
10certificate of domestication, upon being filed in the
11department, shall constitute the certificate of limited
12partnership of the domesticated foreign limited partnership, and
13it shall thereafter continue as a limited partnership which
14shall be a domestic limited partnership subject to this chapter.
15(b) Certificate of domestication.--The certificate of
16domestication shall be executed by the limited partnership and
17shall set forth in the English language:
18(1) The name of the limited partnership. If the name is
19in a foreign language, it shall be set forth in Roman letters
20or characters or Arabic or Roman numerals. If the name is one
21that is rendered unavailable for use by any provision of
22section 8505 (relating to name), the limited partnership
23shall adopt, in accordance with any procedures for changing
24the name of the limited partnership that are applicable prior
25to the domestication of the limited partnership, and shall
26set forth in the certificate of domestication an available
27name.
28(2) Subject to section 109 (relating to name of
29commercial registered office provider in lieu of registered
30address), the address, including street and number, if any,
1of its registered office in this Commonwealth.
2(3) A statement that upon domestication the limited
3partnership will be subject to the domestic limited
4partnership provisions of the Pennsylvania Revised Uniform
5Limited Partnership Act and, if desired, a brief statement of
6the purpose or purposes for which it is to be domesticated,
7which shall be a purpose or purposes for which a domestic
8limited partnership may be organized under this chapter and
9which may consist of or include a statement that the limited
10partnership shall have unlimited power to engage in and to do
11any lawful act concerning any or all lawful business for
12which limited partnerships may be organized under the
13Pennsylvania Revised Uniform Limited Partnership Act.
14(4) Any desired provisions relating to the manner and
15basis of reclassifying the partnership interests in the
16limited partnership.
17(5) A statement that the filing of the certificate of
18domestication and, if desired, the renunciation of the
19original certificate of limited partnership of the limited
20partnership has been authorized (unless its certificate of
21limited partnership or other organic documents require a
22greater vote) by a majority of the votes cast by all partners
23entitled to vote thereon and, if any class of partners is
24entitled to vote thereon as a class, a majority of the votes
25cast in each class vote.
26(6) Any other provisions authorized by this chapter to
27be set forth in an original certificate of limited
28partnership.
29See sections 134 (relating to docketing statement), 135
30(relating to requirements to be met by filed documents) and 8514
1(relating to execution of certificates).
2(c) Effect of domestication.--
3(1) As a domestic limited partnership, the domesticated
4limited partnership shall no longer be a foreign limited
5partnership for the purposes of this chapter and shall
6instead be a domestic limited partnership with all the powers
7and privileges and all the duties and limitations granted and
8imposed upon domestic limited partnerships. In all other
9respects, the domesticated limited partnership shall be
10deemed to be the same limited partnership as it was prior to
11the domestication without any change in or effect on its
12existence. Without limiting the generality of the previous
13sentence, the domestication shall not be deemed to have
14dissolved the limited partnership or to have affected in any
15way:
16(i) the right and title of the limited partnership
17in and to its assets, property, franchises, estates and
18choses in action;
19(ii) the liability of the limited partnership for
20its debts, obligations, penalties and public accounts due
21the Commonwealth;
22(iii) any liens or other encumbrances on the
23property or assets of the limited partnership; or
24(iv) any contract, license or other agreement to
25which the limited partnership is a party or under which
26it has any rights or obligations.
27(2) The partnership interests in the domesticated
28limited partnership shall be unaffected by the domestication
29except to the extent, if any, reclassified in the certificate
30of domestication.]
1Section 54. The definitions of "certificate of
2organization," "foreign limited liability company" and
3"qualified foreign limited liability company" in section 8903(a)
4of Title 15 are amended to read:
5§ 8903. Definitions and index of definitions.
6(a) Definitions.--The following words and phrases when used
7in this chapter shall have the meanings given to them in this
8section unless the context clearly indicates otherwise:
9"Certificate of organization." The certificate of
10organization referred to in section 8913 (relating to
11certificate of organization) and the certificate of organization
12as amended. The term includes any other statements or
13certificates permitted or required to be filed in the Department
14of State by sections 108 (relating to change in location or
15status of registered office provided by agent) and 138 (relating
16to statement of correction), Chapter 3 (relating to entity
17transactions) or this part. If an amendment of the certificate
18of organization or a [certificate of merger or division made in
19the manner permitted by this chapter] statement filed under
20Chapter 3 restates the certificate of organization in its
21entirety [or if there is a certificate of consolidation or
22domestication], thenceforth the certificate of organization
23shall not include any prior documents, and any certificate
24issued by the Department of State with respect thereto shall so
25state.
26* * *
27"Foreign limited liability company." An association
28organized under the laws of any jurisdiction other than this
29Commonwealth, whether or not required to register under
30[Subchapter J (relating to foreign companies)] Chapter 4
1(relating to foreign associations), which would be a limited
2liability company if organized under the laws of this
3Commonwealth.
4* * *
5"Qualified foreign limited liability company." A foreign
6limited liability company that is registered under [Subchapter J
7(relating to foreign companies) to do business in this
8Commonwealth] Chapter 4 (relating to foreign associations).
9* * *
10Section 55. Sections 8905 and 8908 and Subchapters G and H
11of Chapter 89 and section 8978 and Subchapter J of Chapter 89 of
12Title 15 are repealed:
13[§ 8905. Name.
14(a) General rule.--The name of each limited liability
15company as set forth in its certificate of organization shall:
16(1) Be expressed in Roman letters or characters or
17Arabic or Roman numerals.
18(2) Not be one rendered unavailable for use by a
19corporation by any provision of section 1303(b) and (c)
20(relating to corporate name).
21(3) Contain the term "company," "limited" or "limited
22liability company" or an abbreviation of one of those terms.
23(b) Reservation of name.--The exclusive right to the use of
24a name for purposes of this chapter may be reserved and
25transferred in the manner provided by section 1305 (relating to
26reservation of corporate name).
27§ 8908. Election of professional association to become limited
28liability company.
29(a) General rule.--This chapter applies to every
30professional association subject to Chapter 93 (relating to
1professional associations) that elects to accept the provisions
2of this chapter in the manner set forth in subsection (b).
3(b) Procedure for election.--A professional association may
4elect to accept this chapter by filing in the Department of
5State a certificate of election of limited liability company
6status which shall be executed by all of the associates of the
7professional association and shall set forth:
8(1) The name of the professional association.
9(2) The name of the county in the office of the
10prothonotary of which the initial articles of association of
11the association were filed.
12(3) A statement that the associates of the professional
13association have elected to accept the provisions of this
14chapter for the government and regulation of the affairs of
15the association.
16(4) The provisions that shall constitute the initial
17certificate of organization of the limited liability company
18resulting from the filing, which may include such amendments
19to the articles of association of the professional
20association as the associates may choose to adopt.
21See sections 134 (relating to docketing statement) and 135
22(relating to requirements to be met by filed documents).
23(c) Date of organization.--This chapter shall become
24applicable to the professional association, and it shall be
25deemed organized as a limited liability company, on the date the
26certificate of election is filed in the department.
27SUBCHAPTER G
28MERGERS AND CONSOLIDATIONS
29Sec.
308956. Merger and consolidation of limited liability companies
1authorized.
28957. Approval of merger or consolidation.
38958. Certificate of merger or consolidation.
48959. Effect of merger or consolidation.
5§ 8956. Merger and consolidation of limited liability companies
6authorized.
7(a) Domestic surviving or new limited liability company.--
8Any two or more domestic limited liability companies, or any two
9or more foreign limited liability companies, or any one or more
10domestic limited liability companies and any one or more foreign
11limited liability companies, may, in the manner provided in this
12subchapter, be merged into one of the domestic limited liability
13companies designated in this subchapter as the surviving limited
14liability company, or consolidated into a new limited liability
15company to be formed under this chapter, if the foreign limited
16liability companies are authorized by the laws of the
17jurisdiction under which they are organized to effect a merger
18or consolidation with a limited liability company of another
19jurisdiction.
20(b) Foreign surviving or new limited liability company.--Any
21one or more domestic limited liability companies and any one or
22more foreign limited liability companies may, in the manner
23provided in this subchapter, be merged into one of the foreign
24limited liability companies designated in this subchapter as the
25surviving limited liability company, or consolidated into a new
26limited liability company to be organized under the laws of the
27jurisdiction under which one of the foreign limited liability
28companies is organized, if the laws of that jurisdiction
29authorize a merger with or consolidation into a limited
30liability company of another jurisdiction.
1(c) Business trusts and other associations.--The provisions
2of this subchapter applicable to domestic and foreign limited
3liability companies shall also be applicable to a merger or
4consolidation to which a domestic limited liability company is a
5party or in which such a company is the resulting entity with or
6into a domestic or foreign corporation, partnership, business
7trust or other association. The surviving or resulting entity in
8such a merger or consolidation may be a corporation,
9partnership, business trust or other association. Except as
10otherwise provided by law in this Commonwealth or any other
11jurisdiction, the powers and duties vested in and imposed upon
12the managers and members in this subchapter shall be exercised
13and performed by the group of persons under the direction of
14whom the business and affairs of the corporation, partnership,
15business trust or other association are managed and the holders
16or owners of shares or other interests in the corporation,
17partnership, business trust or other association, respectively,
18irrespective of the names by which the managing group and the
19holders or owners of shares or other interests are designated.
20The units into which the shares or other interests in the
21corporation, partnership, business trust or other association
22are divided shall be deemed to be membership interests for the
23purposes of applying the provisions of this subchapter to a
24merger or consolidation involving the corporation, partnership,
25business trust or other association.
26§ 8957. Approval of merger or consolidation.
27(a) Preparation of plan of merger or consolidation.--A plan
28of merger or consolidation, as the case may be, shall be
29prepared, setting forth:
30(1) The terms and conditions of the merger or
1consolidation.
2(2) If the surviving or new limited liability company is
3or is to be a domestic limited liability company:
4(i) in the case of a merger, any changes desired to
5be made in the certificate of organization or operating
6agreement, which may include a restatement of either or
7both; or
8(ii) in the case of a consolidation:
9(A) all of the statements required by this
10chapter to be set forth in a restated certificate of
11organization; and
12(B) the written provisions, if any, of the
13operating agreement.
14(3) The manner and basis of converting the membership
15interests of each company into membership interests,
16securities or obligations of the surviving or new company, as
17the case may be, and, if any of the membership interests of
18any of the companies that are parties to the merger or
19consolidation are not to be converted solely into membership
20interests, securities or obligations of the surviving or new
21company, the membership interests, securities or obligations
22of any other person or cash, property or rights that the
23holders of such membership interests are to receive in
24exchange for, or upon conversion of, such membership
25interests, and the surrender of any certificates evidencing
26them, which securities or obligations, if any, of any other
27person or cash, property or rights may be in addition to or
28in lieu of the membership interests, securities or
29obligations of the surviving or new company.
30(4) Such other provisions as are deemed desirable.
1(b) Reference to outside facts.--Any of the terms of the
2plan may be made dependent upon facts ascertainable outside of
3the plan if the manner in which the facts will operate upon the
4terms of the plan is set forth in the plan. Such facts may
5include, without limitation, actions or events within the
6control of or determinations made by a party to the plan or a
7representative of a party to the plan.
8(c) Post-adoption amendment of plan of merger or
9consolidation.--A plan of merger or consolidation may contain a
10provision that the managers, if any, of the constituent
11companies may amend the plan at any time prior to its effective
12date, except that an amendment made subsequent to any adoption
13of the plan by the members of any constituent domestic company
14shall not, without the approval of the members, change:
15(1) The amount or kind of membership interests,
16obligations, cash, property or rights to be received in
17exchange for or on conversion of all or any of the membership
18interests of the constituent domestic company adversely to
19the holders of those membership interests.
20(2) Any provision of the certificate of organization or
21operating agreement of the surviving or new company as it is
22to be in effect immediately following consummation of the
23merger or consolidation except provisions that may be amended
24without the approval of the members.
25(3) Any of the other terms and conditions of the plan if
26the change would adversely affect the holders of any
27membership interests of the constituent domestic company.
28(d) Proposal of merger or consolidation.--Every merger or
29consolidation shall be proposed, in the case of each domestic
30limited liability company that is managed by one or more
1managers, by the adoption by the managers of a resolution
2approving the plan of merger or consolidation and, in any other
3case, in accordance with any applicable procedures specified in
4the operating agreement. Except where the approval of the
5members is unnecessary under this subchapter or the operating
6agreement, the plan shall be submitted to a vote of the members
7entitled to vote thereon at a regular or special meeting of the
8members.
9(e) Party to plan.--An association that approves a plan in
10its capacity as a member or creditor of a merging or
11consolidating company or that furnishes all or a part of the
12consideration contemplated by a plan does not thereby become a
13party to the merger or consolidation for the purposes of this
14subchapter.
15(f) Notice of meeting of members.--Written notice of the
16meeting of members that will act on the proposed plan shall be
17given to each member of record, whether or not entitled to vote
18thereon, of each domestic limited liability company that is a
19party to the merger or consolidation. There shall be included in
20or enclosed with the notice a copy of the proposed plan or a
21summary thereof. The provisions of this subsection may not be
22relaxed by any provision of the certificate of organization or
23operating agreement.
24(g) Adoption of plan by members.--The plan of merger or
25consolidation shall be adopted upon receiving a majority of the
26votes cast by all members, if any, entitled to vote thereon of
27each of the domestic limited liability companies that is a party
28to the merger or consolidation and, if any class of members is
29entitled to vote thereon as a class, a majority of the votes
30cast in each class vote. A proposed plan of merger or
1consolidation shall not be deemed to have been adopted by a
2company that is managed by one or more managers unless it has
3also been approved by the managers, regardless of the fact that
4the managers have directed or suffered the submission of the
5plan to the members for action.
6(h) Adoption by managers.--
7(1) Unless otherwise required by a written provision of
8the operating agreement, a plan of merger or consolidation
9shall not require the approval of the members of a company
10that is managed by one or more managers if:
11(i) the plan, whether or not the company is the
12surviving company, does not alter the status of the
13company as a domestic limited liability company or alter
14in any respect the provisions of its certificate of
15organization or operating agreement, except changes that
16may be made without action by the members; and
17(ii) each membership interest outstanding
18immediately prior to the effective date of the merger or
19consolidation is to continue as or to be converted into,
20except as may be otherwise agreed by the holder thereof,
21an identical membership interest in the surviving or new
22company after the effective date of the merger or
23consolidation.
24(2) If a merger or consolidation is effected pursuant to
25paragraph (1), the plan of merger or consolidation shall be
26deemed adopted by the company when it has been adopted by the
27managers pursuant to subsection (d).
28(i) Termination of plan.--Prior to the time when a merger or
29consolidation becomes effective, the merger or consolidation may
30be terminated pursuant to provisions therefor, if any, set forth
1in the plan. If a certificate of merger or consolidation has
2been filed in the department prior to the termination, a
3certificate of termination executed by each company that is a
4party to the merger or consolidation, unless the plan permits
5termination by less than all of the companies, in which case the
6certificate shall be executed on behalf of the company
7exercising the right to terminate, shall be filed in the
8department. The certificate of termination shall set forth:
9(1) A copy of the certificate of merger or consolidation
10relating to the plan that is terminated.
11(2) A statement that the plan has been terminated in
12accordance with the provisions therefor set forth therein.
13See sections 134 (relating to docketing statement), 135
14(relating to requirements to be met by filed documents), 138
15(relating to statement of correction) and 8907 (relating to
16execution of documents).
17(j) Authorization by foreign limited liability companies.--
18The plan of merger or consolidation shall be authorized, adopted
19or approved by each foreign limited liability company that
20desires to merge or consolidate in accordance with the laws of
21the jurisdiction in which it is organized.
22§ 8958. Certificate of merger or consolidation.
23(a) General rule.--Upon the adoption of the plan of merger
24or consolidation by the limited liability companies desiring to
25merge or consolidate, as provided in this subchapter, a
26certificate of merger or a certificate of consolidation, as the
27case may be, shall be executed by each company and shall,
28subject to section 109 (relating to name of commercial
29registered office provider in lieu of registered address), set
30forth:
1(1) The name and the location of the registered office,
2including street and number, if any, of the domestic
3surviving or new limited liability company or, in the case of
4a foreign surviving or new limited liability company, the
5name of the company and its jurisdiction of organization,
6together with either of the following:
7(i) If a qualified foreign limited liability
8company, the address, including street and number, if
9any, of its registered office in this Commonwealth.
10(ii) If a nonqualified foreign limited liability
11company, the address, including street and number, if
12any, of its principal office under the laws of the
13jurisdiction in which it is organized.
14(2) The name and address, including street and number,
15if any, of the registered office of each other domestic
16limited liability company and qualified foreign limited
17liability company that is a party to the merger or
18consolidation.
19(3) If the plan is to be effective on a specified date,
20the hour, if any, and the month, day and year of the
21effective date.
22(4) The manner in which the plan was adopted by each
23domestic limited liability company and, if one or more
24foreign limited liability companies are parties to the merger
25or consolidation, the fact that the plan was authorized,
26adopted or approved, as the case may be, by each of the
27foreign limited liability companies in accordance with the
28laws of the jurisdiction in which it is organized.
29(5) Except as provided in subsection (b), the plan of
30merger or consolidation.
1(b) Omission of certain provisions of plan of merger or
2consolidation.--A certificate of merger or consolidation may
3omit all provisions of the plan of merger or consolidation
4except provisions, if any, that are intended to amend or
5constitute the operative provisions of the certificate of
6organization of a company as in effect subsequent to the
7effective date of the plan, if the certificate of merger or
8consolidation states that the full text of the plan is on file
9at the principal place of business of the surviving or new
10company and states the address thereof. A company that takes
11advantage of this subsection shall furnish a copy of the full
12text of the plan, on request and without cost, to any member of
13any company that was a party to the plan and, unless all parties
14to the plan had fewer than 30 members each, on request and at
15cost to any other person.
16(c) Filing of certificate of merger or consolidation.--The
17certificate of merger or certificate of consolidation, as the
18case may be, and the certificates or statement, if any, required
19by section 139 (relating to tax clearance of certain fundamental
20transactions) shall be filed in the department.
21(d) Effective date of merger or consolidation.--Upon the
22filing of the certificate of merger or the certificate of
23consolidation in the Department of State or upon the effective
24date specified in the plan of merger or consolidation, whichever
25is later, the merger or consolidation shall be effective. The
26merger or consolidation of one or more domestic limited
27liability companies into a foreign limited liability company
28shall be effective according to the provisions of law of the
29jurisdiction in which the foreign limited liability company is
30organized, but not until a certificate of merger or certificate
1of consolidation has been adopted and filed, as provided in this
2subchapter.
3(e) Cross references.--See sections 134 (relating to
4docketing statement), 135 (relating to requirements to be met by
5filed documents) and 8907 (relating to execution of documents).
6§ 8959. Effect of merger or consolidation.
7(a) Single surviving or new limited liability company.--Upon
8the merger or consolidation becoming effective, the several
9limited liability companies parties to the merger or
10consolidation shall be a single company which, in the case of a
11merger, shall be the company designated in the plan of merger as
12the surviving company and, in the case of a consolidation, shall
13be the new company provided for in the plan of consolidation.
14The separate existence of all companies parties to the merger or
15consolidation shall cease, except that of the surviving company,
16in the case of a merger.
17(b) Property rights.--All the property, real, personal and
18mixed, of each of the companies parties to the merger or
19consolidation and all debts due on whatever account to any of
20them, as well as all other things and causes of action belonging
21to any of them, shall be deemed to be vested in and shall belong
22to the surviving or new company, as the case may be, without
23further action, and the title to any real estate or any interest
24therein vested in any of the companies shall not revert or be in
25any way impaired by reason of the merger or consolidation. The
26surviving or new company shall thenceforth be responsible for
27all the liabilities of each of the companies so merged or
28consolidated. Liens upon the property of the merging or
29consolidating companies shall not be impaired by the merger or
30consolidation, and any claim existing or action or proceeding
1pending by or against any of the companies may be prosecuted to
2judgment as if the merger or consolidation had not taken place
3or the surviving or new company may be proceeded against or
4substituted in its place.
5(c) Taxes.--Any taxes, interest, penalties and public
6accounts of the Commonwealth claimed against any of the merging
7or consolidating companies that are settled, assessed or
8determined prior to or after the merger or consolidation shall
9be the liability of the surviving or new company and, together
10with interest thereon, shall be a lien against the property,
11both real and personal, of the surviving or new company.
12(d) Certificate of organization.--In the case of a merger,
13the certificate of organization of the surviving domestic
14limited liability company, if any, shall be deemed to be amended
15to the extent, if any, that changes in its certificate of
16organization are stated in the plan of merger. In the case of a
17consolidation into a domestic limited liability company, the
18statements that are set forth in the plan of consolidation or
19certificate of organization set forth therein shall be deemed to
20be the certificate of organization of the new limited liability
21company.
22SUBCHAPTER H
23DIVISION
24Sec.
258961. Division authorized.
268962. Proposal and adoption of plan of division.
278963. Division without member approval.
288964. Certificate of division.
298965. Effect of division.
30§ 8961. Division authorized.
1(a) Division of domestic company.--Any domestic limited
2liability company may, in the manner provided in this
3subchapter, be divided into two or more domestic limited
4liability companies organized or to be organized under this
5chapter, or into one or more domestic limited liability
6companies and one or more foreign limited liability companies to
7be organized under the laws of another jurisdiction or
8jurisdictions, or into two or more foreign limited liability
9companies, if the laws of the other jurisdictions authorize the
10division.
11(b) Division of foreign company.--Any foreign limited
12liability company may, in the manner provided in this
13subchapter, be divided into one or more domestic limited
14liability companies to be organized under this chapter and one
15or more foreign limited liability companies organized or to be
16organized under the laws of another jurisdiction or
17jurisdictions, or into two or more domestic limited liability
18companies, if the foreign limited liability company is
19authorized under the laws of the jurisdiction under which it is
20incorporated to effect a division.
21(c) Surviving and new companies.--The company effecting a
22division, if it survives the division, is designated in this
23subchapter as the surviving company. All companies originally
24organized by a division are designated in this subchapter as new
25companies. The surviving company, if any, and the new company or
26companies are collectively designated in this subchapter as the
27resulting companies.
28§ 8962. Proposal and adoption of plan of division.
29(a) Preparation of plan.--A plan of division shall be
30prepared, setting forth:
1(1) The terms and conditions of the division, including
2the manner and basis of:
3(i) The reclassification of the membership interests
4of the surviving company, if there be one, and, if any of
5the membership interests of the dividing company are not
6to be converted solely into membership interests or other
7securities or obligations of one or more of the resulting
8companies, the membership interests or other securities
9or obligations of any other person or cash, property or
10rights that the holders of such membership interests are
11to receive in exchange for or upon conversion of such
12membership interests, and the surrender of any
13certificates evidencing them, which securities or
14obligations, if any, of any other person or cash,
15property or rights may be in addition to or in lieu of
16membership interests or other securities or obligations
17of one or more of the resulting companies.
18(ii) The disposition of the membership interests and
19other securities or obligations, if any, of the new
20company or companies resulting from the division.
21(2) A statement that the dividing company will or will
22not survive the division.
23(3) Any changes desired to be made in the certificate of
24organization of the surviving company, if there be one,
25including a restatement of the certificate.
26(4) The certificates of organization required by
27subsection (c).
28(5) Such other provisions as are deemed desirable.
29(b) Reference to outside facts.--Any of the terms of the
30plan may be made dependent upon facts ascertainable outside of
1the plan if the manner in which the facts will operate upon the
2terms of the plan is set forth in the plan. Such facts may
3include, without limitation, actions or events within the
4control of or determinations made by the dividing limited
5liability company or a representative of the dividing limited
6liability company.
7(c) Certificates of organization of new companies.--There
8shall be included in or annexed to the plan of division:
9(1) Certificates of organization, which shall contain
10all of the statements required by this chapter to be set
11forth in a restated certificate, for each of the new domestic
12limited liability companies, if any, resulting from the
13division.
14(2) Certificates of organization or other organizational
15documents for each of the new foreign limited liability
16companies, if any, resulting from the division.
17(d) Proposal and adoption.--Except as otherwise provided in
18section 8963 (relating to division without member approval), the
19plan of division shall be proposed and adopted and may be
20amended after its adoption and terminated by a domestic limited
21liability company in the manner provided for the proposal,
22adoption, amendment and termination of a plan of merger in
23Subchapter G (relating to mergers and consolidations) or, if the
24dividing company is a foreign limited liability company, in
25accordance with the laws of the jurisdiction in which it is
26organized.
27§ 8963. Division without member approval.
28Unless otherwise required by a written provision of the
29operating agreement, a plan of division that does not alter the
30state of organization of a limited liability company that is
1managed by one or more managers nor amend in any respect the
2provisions of its certificate of organization or operating
3agreement (except amendments which may be made without action by
4the members) shall not require the approval of the members of
5the company if:
6(1) the dividing company has only one class of
7membership interests outstanding and the membership interests
8and other securities, if any, of each company resulting from
9the plan are distributed pro rata to the members of the
10dividing company;
11(2) the dividing company survives the division and all
12the membership interests and other securities and
13obligations, if any, of all new companies resulting from the
14plan are owned solely by the surviving company; or
15(3) the transfers of assets effected by the division, if
16effected by means of a sale, lease, exchange or other
17disposition, would not require the approval of the members.
18§ 8964. Certificate of division.
19(a) Contents.--Upon the adoption of a plan of division by
20the limited liability company desiring to divide, as provided in
21this subchapter, a certificate of division shall be executed by
22the company and shall, subject to section 109 (relating to name
23of commercial registered office provider in lieu of registered
24address), set forth:
25(1) The name and the location of the registered office,
26including street and number, if any, of the dividing domestic
27limited liability company or, in the case of a dividing
28foreign limited liability company, the name of the company
29and the jurisdiction in which it is organized, together with
30either:
1(i) If a qualified foreign limited liability
2company, the address, including street and number, if
3any, of its registered office in this Commonwealth.
4(ii) If a nonqualified foreign limited liability
5company, the address, including street and number, if
6any, of its principal office under the laws of that
7jurisdiction.
8(2) The statute under which the dividing company was
9organized and the date of organization.
10(3) A statement that the dividing company will or will
11not survive the division.
12(4) The name and address, including street and number,
13if any, of the registered office of each new domestic limited
14liability company or qualified foreign limited liability
15company resulting from the division.
16(5) If the plan is to be effective on a specific date,
17the hour, if any, and the month, day and year of the
18effective date.
19(6) The manner in which the plan was adopted by the
20company.
21(7) The plan of division.
22(b) Filing.--The certificate of division and the
23certificates or statement, if any, required by section 139
24(relating to tax clearance of certain fundamental transactions)
25shall be filed in the Department of State.
26(c) Effective date of division.--Upon the filing of the
27certificate of division in the Department of State or upon the
28effective date specified in the plan of division, whichever is
29later, the division shall become effective. The division of a
30domestic limited liability company into one or more foreign
1limited liability companies or the division of a foreign limited
2liability company shall be effective according to the laws of
3the jurisdictions where the foreign companies are or are to be
4organized but not until a certificate of division has been
5adopted and filed as provided in this subchapter.
6(d) Cross references.--See sections 134 (relating to
7docketing statement), 135 (relating to requirements to be met by
8filed documents) and 8907 (relating to execution of documents).
9§ 8965. Effect of division.
10(a) Multiple resulting companies.--Upon the division
11becoming effective, the dividing company shall be subdivided
12into the distinct and independent resulting companies named in
13the plan of division, and, if the dividing company is not to
14survive the division, the existence of the dividing company
15shall cease. The resulting companies, if they are domestic
16limited liability companies, shall not thereby acquire authority
17to engage in any business or exercise any right that a company
18may not be organized under this chapter to engage in or
19exercise. Any resulting foreign limited liability company that
20is stated in the certificate of division to be a qualified
21foreign limited liability company shall be a qualified foreign
22limited liability company under Subchapter J (relating to
23foreign companies), and the certificate of division shall be
24deemed to be the application for registration of a foreign
25limited liability company of the limited liability company.
26(b) Property rights; allocations of assets and
27liabilities.--
28(1) (i) All the property, real, personal and mixed, of
29the dividing company and all debts due on whatever
30account to it, including subscriptions for membership
1interests and other causes of action belonging to it,
2shall, except as otherwise provided in paragraph (2), to
3the extent allocations of assets are contemplated by the
4plan of division, be deemed without further action to be
5allocated to and vested in the resulting companies on
6such a manner and basis and with such effect as is
7specified in the plan, or per capita among the resulting
8companies as tenants in common if no specification is
9made in the plan, and the title to any real estate or
10interest therein vested in any of the companies shall not
11revert or be in any way impaired by reason of the
12division.
13(ii) Upon the division becoming effective, the
14resulting companies shall each thenceforth be responsible
15as separate and distinct companies only for such
16liabilities as each company may undertake or incur in its
17own name but shall be liable for the liabilities of the
18dividing company in the manner and on the basis provided
19in subparagraphs (iv) and (v).
20(iii) Liens upon the property of the dividing
21company shall not be impaired by the division.
22(iv) To the extent allocations of liabilities are
23contemplated by the plan of division, the liabilities of
24the dividing company shall be deemed without further
25action to be allocated to and become the liabilities of
26the resulting companies on such a manner and basis and
27with such effect as is specified in the plan; and one or
28more, but less than all, of the resulting companies shall
29be free of the liabilities of the dividing company to the
30extent, if any, specified in the plan if in either case:
1(A) no fraud on members or violation of law
2shall be effected thereby; and
3(B) the plan does not constitute a fraudulent
4transfer under 12 Pa.C.S. Ch. 51 (relating to
5fraudulent transfers).
6(v) If the conditions in subparagraph (iv) for
7freeing one or more of the resulting companies from the
8liabilities of the dividing company, or for allocating
9some or all of the liabilities of the dividing company,
10are not satisfied, the liabilities of the dividing
11company as to which those conditions are not satisfied
12shall not be affected by the division nor shall the
13rights of creditors thereunder or of any person dealing
14with the company be impaired by the division, and any
15claim existing or action or proceeding pending by or
16against the company with respect to those liabilities may
17be prosecuted to judgment as if the division had not
18taken place, or the resulting companies may be proceeded
19against or substituted in place of the dividing company
20as joint and several obligors on those liabilities,
21regardless of any provision of the plan of division
22apportioning the liabilities of the dividing company.
23(vi) The conditions in subparagraph (iv) for freeing
24one or more of the resulting companies from the
25liabilities of the dividing company and for allocating
26some or all of the liabilities of the dividing company
27shall be conclusively deemed to have been satisfied if
28the plan of division has been approved by the
29Pennsylvania Public Utility Commission in a final order
30issued after August 21, 2001, that has become not subject
1to further appeal.
2(2) (i) The allocation of any fee or freehold interest
3or leasehold having a remaining term of 30 years or more
4in any tract or parcel of real property situate in this
5Commonwealth owned by a dividing company (including
6property owned by a foreign limited liability company
7dividing solely under the law of another jurisdiction) to
8a new company resulting from the division shall not be
9effective until one of the following documents is filed
10in the office for the recording of deeds of the county,
11or each of them, in which the tract or parcel is
12situated:
13(A) A deed, lease or other instrument of
14confirmation describing the tract or parcel.
15(B) A duly executed duplicate original copy of
16the certificate of division.
17(C) A copy of the certificate of division
18certified by the Department of State.
19(D) A declaration of acquisition setting forth
20the value of real estate holdings in such county of
21the company as an acquired company.
22(ii) The provisions of 75 Pa.C.S. § 1114 (relating
23to transfer of vehicle by operation of law) shall not be
24applicable to an allocation of ownership of any motor
25vehicle, trailer or semitrailer to a new company under
26this section or under a similar law of any other
27jurisdiction but any such allocation shall be effective
28only upon compliance with the requirements of 75 Pa.C.S.
29§ 1116 (relating to issuance of new certificate following
30transfer).
1(3) It shall not be necessary for a plan of division to
2list each individual asset or liability of the dividing
3company to be allocated to a new company so long as those
4assets and liabilities are described in a reasonable and
5customary manner.
6(4) Each new company shall hold any assets and
7liabilities allocated to it as the successor to the dividing
8company, and those assets and liabilities shall not be deemed
9to have been assigned to the new company in any manner,
10whether directly or indirectly or by operation of law.
11(c) Taxes.--Any taxes, interest, penalties and public
12accounts of the Commonwealth claimed against the dividing
13company that are settled, assessed or determined prior to or
14after the division shall be the liability of any of the
15resulting companies and, together with interest thereon, shall
16be a lien against the franchises and property, both real and
17personal, of all the companies. Upon the application of the
18dividing company, the Department of Revenue, with the
19concurrence of the Office of Employment Security of the
20Department of Labor and Industry, shall release one or more, but
21less than all, of the resulting companies from liability and
22liens for all taxes, interest, penalties and public accounts of
23the dividing company due the Commonwealth for periods prior to
24the effective date of the division if those departments are
25satisfied that the public revenues will be adequately secured.
26(d) Certificate of organization of surviving company.--The
27certificate of organization of the surviving company, if there
28be one, shall be deemed to be amended to the extent, if any,
29that changes in its certificate are stated in the plan of
30division.
1(e) Certificates of organization of new companies.--The
2statements that are set forth in the plan of division with
3respect to each new domestic limited liability company and that
4are required or permitted to be set forth in a restated
5certificate of organization of companies organized under this
6chapter or the certificate of organization of each new company
7set forth therein shall be deemed to be the certificate of
8organization of each new company.
9(f) Managers.--Unless otherwise provided in the plan, the
10managers, if any, of the dividing limited liability company
11shall be the initial managers of each of the resulting
12companies.
13(g) Disposition of membership interests.--Unless otherwise
14provided in the plan, the membership interests and other
15securities or obligations, if any, of each new company resulting
16from the division shall be distributable to:
17(1) the surviving company if the dividing company
18survives the division; or
19(2) the members of the dividing company in the
20proportions in which the members share in distributions, in
21any other case.
22(h) Conflict of laws.--It is the intent of the General
23Assembly that:
24(1) The effect of a division of a domestic limited
25liability company shall be governed by the laws of this
26Commonwealth and any other jurisdiction under the laws of
27which any of the resulting companies is organized.
28(2) The effect of a division on the assets and
29liabilities of the dividing company shall be governed solely
30by the laws of this Commonwealth and any other jurisdiction
1under the laws of which any of the resulting companies is
2organized.
3(3) The validity of any allocation of assets or
4liabilities by a plan of division of a domestic limited
5liability company, regardless of whether or not any of the
6new companies is a foreign limited liability company, shall
7be governed solely by the laws of this Commonwealth.
8(4) In addition to the express provisions of this
9subsection, this subchapter shall otherwise generally be
10granted the protection of full faith and credit under the
11Constitution of the United States.
12§ 8978. Dissolution by domestication.
13Whenever a domestic limited liability company has
14domesticated itself under the laws of another jurisdiction by
15action similar to that provided by section 8982 (relating to
16domestication) and has authorized that action by the vote
17required by this subchapter for the approval of a proposal that
18the company dissolve voluntarily, the company may surrender its
19certificate of organization under the laws of this Commonwealth
20by filing in the Department of State a certificate of
21dissolution under section 8975 (relating to certificate of
22dissolution). In lieu of the statements required by section
238975(a)(2) through (4), the certificate of dissolution shall set
24forth a statement that the company has domesticated itself under
25the laws of another jurisdiction. If the company, as
26domesticated in the other jurisdiction, registers to do business
27in this Commonwealth either prior to or simultaneously with the
28filing of the certificate of dissolution under this section, the
29company shall not be required to file with the certificate of
30dissolution the tax clearance certificates that would otherwise
1be required by section 139 (relating to tax clearance of certain
2fundamental transactions).
3SUBCHAPTER J
4FOREIGN COMPANIES
5Sec.
68981. Foreign limited liability companies.
78982. Domestication.
8§ 8981. Foreign limited liability companies.
9(a) General rule.--A foreign limited liability company shall
10be subject to Subchapter K of Chapter 85 (relating to foreign
11limited partnerships) as if it were a foreign limited
12partnership, except that:
13(1) Section 8582(a)(5) and (6) (relating to
14registration) shall not be applicable to the application for
15registration of a foreign limited liability company.
16(2) If the foreign limited liability company is to be a
17qualified foreign restricted professional company, its
18application for registration shall so state and shall also
19contain a brief description of the professional service or
20services to be rendered by the company.
21(3) A qualified foreign limited liability company shall
22enjoy the same rights and privileges as a domestic limited
23liability company, but no more, and, except as otherwise
24provided by law, shall be subject to the same liabilities,
25restrictions, duties and penalties now in force or hereafter
26imposed upon domestic limited liability companies to the same
27extent as if it had been organized under this chapter.
28(b) Provision applicable to all foreign limited liability
29companies.--Section 8926 (relating to certain specifically
30authorized debt terms) shall be applicable to any obligation, as
1defined in section 1510 (relating to certain specifically
2authorized debt terms), of a foreign limited liability company
3executed or effected in this Commonwealth or affecting real
4property situated in this Commonwealth.
5§ 8982. Domestication.
6(a) General rule.--Any qualified foreign limited liability
7company may become a domestic limited liability company by
8filing in the Department of State a certificate of
9domestication. The certificate of domestication, upon being
10filed in the department, shall constitute the certificate of
11organization of the domesticated company, and it shall
12thereafter continue as a limited liability company which shall
13be a domestic limited liability company subject to this chapter.
14(b) Certificate of domestication.--The certificate of
15domestication shall be executed by the company and shall set
16forth in the English language:
17(1) The name of the company. If the name is in a foreign
18language, it shall be set forth in Roman letters or
19characters or Arabic or Roman numerals. If the name is one
20that is rendered unavailable for use by any provision of
21section 8905 (relating to name), the company shall adopt, in
22accordance with any procedures for changing the name of the
23company that are applicable prior to the domestication of the
24company, and shall set forth in the certificate of
25domestication an available name.
26(2) Subject to section 109 (relating to name of
27commercial registered office provider in lieu of registered
28address), the address, including street and number, if any,
29of its registered office in this Commonwealth.
30(3) A statement that upon domestication the company will
1be subject to the domestic limited liability company
2provisions of the Limited Liability Company Law of 1994 and,
3if desired, a brief statement of the purpose or purposes for
4which it is to be domesticated which shall be a purpose or
5purposes for which a domestic limited liability company may
6be organized under this chapter and which may consist of or
7include a statement that the company shall have unlimited
8power to engage in and to do any lawful act concerning any or
9all lawful business for which companies may be organized
10under the Limited Liability Company Law of 1994.
11(4) Any desired provisions relating to the manner and
12basis of reclassifying the membership interests of the
13company.
14(5) A statement that the filing of the certificate of
15domestication and, if desired, the renunciation of the
16original certificate of organization of the company has been
17authorized, unless its certificate of organization or other
18organic documents require a greater vote, by a majority of
19the votes cast by all members entitled to vote thereon and,
20if any class of members is entitled to vote thereon as a
21class, a majority of the votes cast in each class vote.
22(6) Any other provisions authorized or required by this
23chapter to be set forth in an original certificate of
24organization.
25See sections 134 (relating to docketing statement), 135
26(relating to requirements to be met by filed documents) and 8907
27(relating to execution of documents).
28(c) Effect of domestication.--
29(1) As a domestic limited liability company, the
30domesticated company shall no longer be a foreign limited
1liability company for the purposes of this chapter and shall
2instead be a domestic limited liability company with all the
3powers and privileges and all the duties and limitations
4granted and imposed upon domestic limited liability
5companies. In all other respects, the domesticated limited
6liability company shall be deemed to be the same limited
7liability company as it was prior to the domestication
8without any change in or effect on its existence. Without
9limiting the generality of the previous sentence, the
10domestication shall not be deemed to have dissolved the
11company or to have affected in any way:
12(i) the right and title of the company in and to its
13assets, property, franchises, estates and choses in
14action;
15(ii) the liability of the company for its debts,
16obligations, penalties and public accounts due the
17Commonwealth;
18(iii) any liens or other encumbrances on the
19property or assets of the company; or
20(iv) any contract, license or other agreement to
21which the company is a party or under which it has any
22rights or obligations.
23(2) The membership interests in the domesticated company
24shall be unaffected by the domestication except to the
25extent, if any, reclassified in the certificate of
26domestication.]
27Section 56. The definition of "transfer" in section 9112 of
28Title 15 is amended to read:
29§ 9112. Definitions.
30The following words and phrases when used in this chapter
1shall have the meanings given to them in this section unless the
2context clearly indicates otherwise:
3* * *
4["Transfer." Includes:
5(1) an assignment;
6(2) a conveyance;
7(3) a sale;
8(4) a lease;
9(5) an encumbrance, including a mortgage or security
10interest;
11(6) a gift; and
12(7) a transfer by operation of law.]
13Section 57. Sections 9302(3), 9502(a) introductory
14paragraph, 9503(b) and 9507(a) of Title 15 are amended to read:
15§ 9302. Application of chapter.
16This chapter shall apply to and the word "association" in
17this chapter shall mean a professional association organized
18under the act of August 7, 1961 (P.L.941, No.416), known as the
19Professional Association Act, which has not:
20* * *
21(3) [Elected to become a limited liability company in
22the manner provided by section 8908 (relating to election of
23professional association to become limited liability
24company).] Converted to a limited liability company under
25Subchapter E of Chapter 3 (relating to conversion).
26* * *
27§ 9502. Creation, status and termination of business trusts.
28(a) Creation.--[A business trust may be created in real or
29personal property, or both, with power in] Except as provided in
30the instrument, the trustee has the power:
1* * *
2§ 9503. Documentation of trust.
3* * *
4(b) Definition of "instrument".--The term "instrument," as
5used in this chapter, shall mean the original deed of trust or
6other written instrument, all amendments thereof and any other
7statements or certificates permitted or required to be filed in
8the department by sections 108 (relating to change in location
9or status of registered office provided by agent) and 138
10(relating to statement of correction), Chapter 3 (relating to
11entity transactions) or this chapter. If an amendment of the
12instrument or [articles of merger made in the manner permitted
13by section 1921(c) (relating to business trusts and other
14associations) or a certificate of merger made in the manner
15permitted by section 8545(c) (relating to business trusts and
16other associations)] a statement filed under Chapter 3 restates
17an instrument in its entirety, thenceforth the "instrument"
18shall not include any prior documents, and any certificate
19issued by the department with respect thereto shall so state.
20* * *
21§ 9507. Foreign business trusts.
22[(a) General rule.--A business trust organized under any
23laws other than those of this Commonwealth shall be subject to
24Subchapters B (relating to qualification) and C (relating to
25powers, duties and liabilities) of Chapter 41, as if it were a
26foreign business corporation, except that a qualified foreign
27business trust shall enjoy the same rights and privileges as a
28domestic business trust, but no more, and, except as otherwise
29provided by law, shall be subject to the same liabilities,
30restrictions, duties and penalties now in force or hereafter
1imposed upon domestic business trusts, to the same extent as if
2it were a domestic business trust.]
3* * *
4Section 58. Section 302 of Title 54 is amended to read:
5§ 302. Definitions.
6(a) Definitions.--The following words and phrases when used
7in this chapter shall have, unless the context clearly indicates
8otherwise, the meanings given to them in this section:
9"Business." Any commercial or professional activity.
10"Entity." Any individual or any corporation, association,
11partnership, joint-stock company, business trust, syndicate,
12joint adventureship or other combination or group of persons,
13regardless of whether it is organized or formed under the laws
14of this Commonwealth or any other jurisdiction.
15"Fictitious name." Any assumed or fictitious name, style or
16designation other than the proper name of the entity using such
17name. The term includes a name assumed by a general partnership,
18syndicate, joint adventureship or similar combination or group
19of persons.
20"Proper name." When used with respect to an association of a
21type listed in the following paragraphs, the term means the name
22set forth in:
23(1) the [articles of incorporation, for a corporation;]
24public organic record, for a domestic filing association;
25(2) the statement of registration, for a limited
26liability partnership;
27[(3) the certificate of limited partnership, for a
28limited partnership;]
29(4) the statement of election, for an electing
30partnership;
1[(5) the certificate of organization, for a limited
2liability company;
3(6) the articles of association, for a professional
4association;
5(7) the deed of trust or other trust instrument, if any,
6that has been filed in the Department of State for a business
7trust; or
8(8) a publicly filed document in another jurisdiction
9which is of a type listed in paragraphs (1) through (7).]
10(9) the statement of registration of a foreign
11registered association under 15 Pa.C.S. § 412(a)(1)(i)
12(relating to foreign registration statement), or if that name
13does not comply with 15 Pa.C.S. § 202 (relating to
14requirements for names generally), the name set forth in the
15statement under 15 Pa.C.S. § 412 (a)(1)(ii).
16(b) Other defined terms.--The definitions in 15 Pa.C.S. §
17102 (relating to definitions) apply to this title except to the
18extent they are inconsistent with the provisions of this title.
19Section 59. Section 303 of Title 54 is amended by adding a
20subsection to read:
21§ 303. Scope of chapter.
22* * *
23(d) Effect of registration.--The registration of a name
24under this chapter does not render the name unavailable for use
25by another entity.
26Section 60. Sections 311(e)(1) and (4), 501(a)(3), (4), (5),
27(6) and (8) and (b), 502(a)(2) introductory paragraph and 503(b)
28(1)(ii) and (c) of Title 54 are amended to read:
29§ 311. Registration.
30* * *
1(e) Duplicate use of names.--The fictitious name shall be
2distinguishable upon the records of the department from:
3(1) The name of any domestic [corporation, or any]
4filing entity, domestic limited liability limited
5partnership, domestic electing partnership, registered
6foreign [corporation authorized to do business in this
7Commonwealth,] association or the name of any corporation or
8other association registered at any time under Chapter 5
9(relating to corporate and other association names) unless
10such name is available or is made available for use under the
11provisions or procedures of 15 Pa.C.S. § [5303(b)(1)(i) or
12(ii) (relating to duplicate use of names) or the equivalent.]
13202(b)(1) (relating to requirements for names generally).
14* * *
15(4) A name the exclusive right to which is at the time
16reserved or registered by any other person [whatsoever in the
17manner provided by] under 15 Pa.C.S. § 208 (relating to
18reservation of name) or 209 (relating to registration of name
19of nonregistered foreign association) or another statute.
20* * *
21§ 501. Register established.
22(a) General rule.--A register is established by this chapter
23which shall consist of such of the following names as are not
24deleted therefrom by operation of section 504 (relating to
25effect of failure to make filings) or 506 (relating to voluntary
26termination of registration by corporations and other
27associations):
28* * *
29(3) In the case of a domestic or [qualified] registered
30foreign corporation, a name rendered unavailable for
1corporate use by other corporations by reason of any filing
2in the department by such domestic or [qualified] registered
3foreign corporation.
4(4) A name registered under 15 Pa.C.S. § [4131] 209
5(relating to registration of name of nonregistered foreign
6association) or any similar provision of law.
7(5) In the case of a business trust which exists subject
8to 15 Pa.C.S. Ch. 95 (relating to business trusts), the name
9of the trust as set forth in the[:
10(i)] instrument filed in the department under 15
11Pa.C.S. § 9503 (relating to documentation of trust)[; or
12(ii) application for registration filed under 15
13Pa.C.S. § 9507 (relating to foreign business trusts)].
14(6) In the case of a limited partnership or limited
15liability company subject to 15 Pa.C.S. Ch. 85 (relating to
16limited partnerships) or 89 (relating to limited liability
17companies), the name of the partnership or company as set
18forth in the certificate of limited partnership, certificate
19of organization or [application for] statement of
20registration as a registered foreign [limited partnership or
21foreign limited liability company, as the case may be]
22association.
23(8) In the case of a registered limited liability
24partnership subject to 15 Pa.C.S. Ch. 82 (relating to
25registered limited liability partnerships) that is not also a
26limited partnership, the name of the partnership as set forth
27in the statement of registration [or application for
28registration] as a registered foreign [registered limited
29liability partnership] association.
30(b) Subsequent availability of certain names.--Whenever, by
1reason of change in name, withdrawal or dissolution of a
2domestic or [qualified] registered foreign [corporation]
3association, failure to renew a registration of its name by a
4[nonqualified] nonregistered foreign [corporation] association,
5or for any other cause, its name is no longer rendered
6unavailable by the express provisions of Title 15 (relating to
7corporations and unincorporated associations), such name shall
8no longer be deemed to be registered under subsection (a)(3) or
9(4) on the register established by this chapter.
10§ 502. Certain additions to register.
11(a) Corporation names.--
12* * *
13(2) Any person who is not eligible to make a filing
14under 15 Pa.C.S. § [4131 (relating to registration of name)
15or 6131] 209 (relating to registration of name of
16nonregistered foreign association) may register a corporation
17name with the department by filing an application for
18registration of name, executed by the person, which shall set
19forth:
20* * *
21§ 503. Decennial filings required.
22* * *
23(b) Exceptions.--Subsection (a) shall not apply to any of
24the following:
25(1) A corporation or other association that during the
26ten years ending on December 31 of the year in which a filing
27would otherwise be required under subsection (a) has made any
28filing in the department pursuant to a provision of this
29title or 15 Pa.C.S. (relating to corporations and
30unincorporated associations) other than:
1* * *
2(ii) a filing under[:
3(A) 15 Pa.C.S. § 1305 (relating to reservation
4of corporate name);
5(B) 15 Pa.C.S. § 5305 (relating to reservation
6of corporate name);
7(C) 15 Pa.C.S. § 8203(b) (relating to name);
8(D) 15 Pa.C.S. § 8505(b) (relating to name); or
9(E)] 15 Pa.C.S. § [8905(b)] 208 (relating to
10reservation of name) or 209 (relating to registration
11of name of nonregistered foreign association).
12* * *
13[(c) Exemptions.--An association shall be exempt from the
142001 decennial filing if the association made a filing:
15(1) After December 31, 1989, and before January 1, 1992,
16pursuant to a provision of this title or 15 Pa.C.S. other
17than a filing under:
18(i) 15 Pa.C.S. § 1305;
19(ii) 15 Pa.C.S. § 5305;
20(iii) 15 Pa.C.S. § 8203(b);
21(iv) 15 Pa.C.S. § 8505(b); or
22(v) 15 Pa.C.S. § 8905(b).
23(2) Under this section during the year 2000.]
24* * *
25Section 61. This act shall take effect in 60 days.