| Passed by the House February 27, 2009 Yeas 94 FRANK CHOPP ________________________________________ Speaker of the House of Representatives Passed by the Senate April 10, 2009 Yeas 47 BRAD OWEN ________________________________________ President of the Senate | I, Barbara Baker, Chief Clerk of the House of Representatives of the State of Washington, do hereby certify that the attached is HOUSE BILL 1068 as passed by the House of Representatives and the Senate on the dates hereon set forth. BARBARA BAKER ________________________________________ Chief Clerk | |
| Approved April 23, 2009, 3:59 p.m. CHRISTINE GREGOIRE ________________________________________ Governor of the State of Washington | April 24, 2009 Secretary of State State of Washington |
| State of Washington | 61st Legislature | 2009 Regular Session |
Prefiled 01/06/09. Read first time 01/12/09. Referred to Committee on Judiciary.
AN ACT Relating to the Washington business corporation act; amending RCW 23B.01.410, 23B.02.020, 23B.02.050, 23B.02.060, 23B.06.020, 23B.06.040, 23B.06.210, 23B.06.220, 23B.06.260, 23B.06.310, 23B.06.400, 23B.07.030, 23B.07.040, 23B.07.060, 23B.07.070, 23B.07.200, 23B.07.250, 23B.07.260, 23B.07.270, 23B.07.280, 23B.07.320, 23B.08.030, 23B.08.210, 23B.08.230, 23B.08.240, 23B.08.250, 23B.08.500, 23B.08.550, 23B.08.700, 23B.10.020, 23B.10.060, 23B.10.070, 23B.10.080, 23B.10.200, 23B.10.205, 23B.10.210, 23B.11.030, 23B.11.040, 23B.12.020, 23B.13.020, 23B.13.200, 23B.13.210, 23B.13.220, 23B.13.240, 23B.13.260, 23B.13.270, 23B.13.280, 23B.14.010, 23B.14.020, 23B.14.030, 23B.14.040, 23B.14.050, 23B.16.010, 23B.16.020, and 23B.19.040; and reenacting and amending RCW 23B.01.400.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 23B.01.400 and 2002 c 297 s 9 and 2002 c 296 s 1 are
each reenacted and amended to read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this title.
(1) "Articles of incorporation" include amended and restated
articles of incorporation and articles of merger.
(2) "Authorized shares" means the shares of all classes a domestic
or foreign corporation is authorized to issue.
(3) "Conspicuous" means so prepared that a reasonable person
against whom the record is to operate should have noticed it. For
example, printing in italics or boldface or contrasting color, or
typing in capitals or underlined, is conspicuous.
(4) "Corporate action" means any resolution, act, policy, contract,
transaction, plan, adoption or amendment of articles of incorporation
or bylaws, or other matter approved by or submitted for approval to a
corporation's incorporators, board of directors or a committee thereof,
or shareholders.
(5) "Corporation" or "domestic corporation" means a corporation for
profit, which is not a foreign corporation, incorporated under or
subject to the provisions of this title.
(((5))) (6) "Deliver" includes (a) mailing, (b) for purposes of
delivering a demand, consent, notice, or waiver to the corporation or
one of its officers, directors, or shareholders, transmission by
facsimile equipment, and (c) for purposes of delivering a demand,
consent, notice, or waiver to the corporation or one of its officers,
directors, or shareholders under RCW 23B.01.410 or chapter 23B.07,
23B.08, 23B.11, 23B.13, 23B.14, or 23B.16 RCW delivery by electronic
transmission.
(((6))) (7) "Distribution" means a direct or indirect transfer of
money or other property, except its own shares, or incurrence of
indebtedness by a corporation to or for the benefit of its shareholders
in respect to any of its shares. A distribution may be in the form of
a declaration or payment of a dividend; a distribution in partial or
complete liquidation, or upon voluntary or involuntary dissolution; a
purchase, redemption, or other acquisition of shares; a distribution of
indebtedness; or otherwise.
(((7))) (8) "Effective date of notice" has the meaning provided in
RCW 23B.01.410.
(((8))) (9) "Electronic transmission" means an electronic
communication (a) not directly involving the physical transfer of a
record in a tangible medium and (b) that may be retained, retrieved,
and reviewed by the sender and the recipient thereof, and that may be
directly reproduced in a tangible medium by such a sender and
recipient.
(((9))) (10) "Electronically transmitted" means the initiation of
an electronic transmission.
(((10))) (11) "Employee" includes an officer but not a director.
A director may accept duties that make the director also an employee.
(((11))) (12) "Entity" includes a corporation and foreign
corporation, not-for-profit corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, two
or more persons having a joint or common economic interest, the state,
United States, and a foreign governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.
(((12))) (13) "Execute," "executes," or "executed" means (a) signed
with respect to a written record or (b) electronically transmitted
along with sufficient information to determine the sender's identity
with respect to an electronic transmission, or (c) with respect to a
record to be filed with the secretary of state, in compliance with the
standards for filing with the office of the secretary of state as
prescribed by the secretary of state.
(((13))) (14) "Foreign corporation" means a corporation for profit
incorporated under a law other than the law of this state.
(((14))) (15) "Foreign limited partnership" means a partnership
formed under laws other than of this state and having as partners one
or more general partners and one or more limited partners.
(((15))) (16) "Governmental subdivision" includes authority,
county, district, and municipality.
(((16))) (17) "Includes" denotes a partial definition.
(((17))) (18) "Individual" includes the estate of an incompetent or
deceased individual.
(((18))) (19) "Limited partnership" or "domestic limited
partnership" means a partnership formed by two or more persons under
the laws of this state and having one or more general partners and one
or more limited partners.
(((19))) (20) "Means" denotes an exhaustive definition.
(((20))) (21) "Notice" has the meaning provided in RCW 23B.01.410.
(((21))) (22) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity.
(((22))) (23) "Principal office" means the office, in or out of
this state, so designated in the annual report where the principal
executive offices of a domestic or foreign corporation are located.
(((23))) (24) "Proceeding" includes civil suit and criminal,
administrative, and investigatory action.
(((24))) (25) "Public company" means a corporation that has a class
of shares registered with the federal securities and exchange
commission pursuant to section 12 or 15 of the securities exchange act
of 1934, or section 8 of the investment company act of 1940, or any
successor statute.
(((25))) (26) "Record" means information inscribed on a tangible
medium or contained in an electronic transmission.
(((26))) (27) "Record date" means the date established under
chapter 23B.07 RCW on which a corporation determines the identity of
its shareholders and their shareholdings for purposes of this title.
The determinations shall be made as of the close of business on the
record date unless another time for doing so is specified when the
record date is fixed.
(((27))) (28) "Secretary" means the corporate officer to whom the
board of directors has delegated responsibility under RCW 23B.08.400(3)
for custody of the minutes of the meetings of the board of directors
and of the shareholders and for authenticating records of the
corporation.
(((28))) (29) "Shares" means the units into which the proprietary
interests in a corporation are divided.
(((29))) (30) "Shareholder" means the person in whose name shares
are registered in the records of a corporation or the beneficial owner
of shares to the extent of the rights granted by a nominee certificate
on file with a corporation.
(((30))) (31) "State," when referring to a part of the United
States, includes a state and commonwealth, and their agencies and
governmental subdivisions, and a territory and insular possession, and
their agencies and governmental subdivisions, of the United States.
(((31))) (32) "Subscriber" means a person who subscribes for shares
in a corporation, whether before or after incorporation.
(((32))) (33) "Tangible medium" means a writing, copy of a writing,
or facsimile, or a physical reproduction, each on paper or on other
tangible material.
(((33))) (34) "United States" includes a district, authority,
bureau, commission, department, and any other agency of the United
States.
(((34))) (35) "Voting group" means all shares of one or more
classes or series that under the articles of incorporation or this
title are entitled to vote and be counted together collectively on a
matter at a meeting of shareholders. All shares entitled by the
articles of incorporation or this title to vote generally on the matter
are for that purpose a single voting group.
(((35))) (36) "Writing" does not include an electronic
transmission.
(((36))) (37) "Written" means embodied in a tangible medium.
Sec. 2 RCW 23B.01.410 and 2008 c 59 s 1 are each amended to read
as follows:
(1) Notice under this title must be provided in the form of a
record, except that oral notice of any meeting of the board of
directors may be given if expressly authorized by the articles of
incorporation or bylaws.
(2) Permissible means of transmission.
(a) Oral notice. Oral notice may be communicated in person, by
telephone, wire, or wireless equipment which does not transmit a
facsimile of the notice, or by any electronic means which does not
create a record. If these forms of oral notice are impracticable, oral
notice may be communicated by radio, television, or other form of
public broadcast communication.
(b) Notice provided in a tangible medium. Notice may be provided
in a tangible medium and be transmitted by mail, private carrier, or
personal delivery; telegraph or teletype; or telephone, wire, or
wireless equipment which transmits a facsimile of the notice. If these
forms of notice in a tangible medium are impracticable, notice in a
tangible medium may be transmitted by an advertisement in a newspaper
of general circulation in the area where published.
(c) Notice provided in an electronic transmission.
(i) Notice may be provided in an electronic transmission and be
electronically transmitted.
(ii) Notice to shareholders or directors in an electronic
transmission is effective only with respect to shareholders and
directors
that have consented, in the form of a record, to receive
electronically transmitted notices under this title and designated in
the consent the address, location, or system to which these notices may
be electronically transmitted and with respect to a notice that
otherwise complies with any other requirements of this title and
applicable federal law.
(A) Notice to shareholders or directors for this purpose includes
material that this title requires to accompany the notice.
(B) A shareholder or director who has consented to receipt of
electronically transmitted notices may revoke this consent by
delivering a revocation to the corporation in the form of a record.
(C) The consent of any shareholder or director is revoked if (I)
the corporation is unable to electronically transmit two consecutive
notices given by the corporation in accordance with the consent, and
(II) this inability becomes known to the secretary of the corporation,
the transfer agent, or any other person responsible for giving the
notice. The inadvertent failure by the corporation to treat this
inability as a revocation does not invalidate any meeting or other
corporate action.
(iii) Notice to shareholders or directors who have consented to
receipt of electronically transmitted notices may be provided by (A)
posting the notice on an electronic network and (B) delivering to the
shareholder or director a separate record of the posting, together with
comprehensible instructions regarding how to obtain access to the
posting on the electronic network.
(iv) Notice to a domestic or foreign corporation, authorized to
transact business in this state, in an electronic transmission is
effective only with respect to a corporation that has designated in a
record an address, location, or system to which the notices may be
electronically transmitted.
(d) Materials accompanying notice to shareholders of public
companies. Notwithstanding anything to the contrary in this section or
any other section of this title, if this title requires that a notice
to shareholders be accompanied by certain material, a public company
may satisfy such a requirement, whether or not a shareholder has
consented to receive electronically transmitted notice, by (i) posting
the material on an electronic network (either separate from, or in
combination or as part of, any other materials the public company has
posted on the electronic network in compliance with applicable federal
law) at or prior to the time that the notice is delivered to the public
company's shareholders entitled to receive the notice, and (ii)
delivering to the public company's shareholders entitled to receive the
notice a separate record of the posting (which record may accompany, or
be contained in, the notice), together with comprehensible instructions
regarding how to obtain access to the posting on the electronic
network. In such a case, the material is deemed to have been delivered
to the public company's shareholders at the time the notice to the
shareholders is effective under this section. A public company that
elects pursuant to this section to post on an electronic network any
material required by this title to accompany a notice to shareholders
is required, at its expense, to provide a copy of the material in a
tangible medium (alone or in combination or as part of any other
materials the public company has posted on the electronic network in
compliance with federal law) to any shareholder entitled to such a
notice who so requests.
(3) Effective time and date of notice.
(a) Oral notice. Oral notice is effective when received.
(b) Notice provided in a tangible medium.
(i) Notice in a tangible medium, if in a comprehensible form, is
effective at the earliest of the following:
(A) If expressly authorized by the articles of incorporation or
bylaws, and if notice is sent to the person's address, telephone
number, or other number appearing on the records of the corporation,
when dispatched by telegraph, teletype, or facsimile equipment;
(B) When received;
(C) Except as provided in (b)(ii) of this subsection, five days
after its deposit in the United States mail, as evidenced by the
postmark, if mailed with first-class postage, prepaid and correctly
addressed; or
(D) On the date shown on the return receipt, if sent by registered
or certified mail, return receipt requested, and the receipt is signed
by or on behalf of the addressee.
(ii) Notice in a tangible medium by a domestic or foreign
corporation to its shareholder, if in a comprehensible form and
correctly addressed to the shareholder's address shown in the
corporation's current record of shareholders, is effective:
(A) When mailed, if mailed with first-class postage prepaid; and
(B) When dispatched, if prepaid, by air courier.
(iii) Notice in a tangible medium to a domestic or foreign
corporation, authorized to transact business in this state, may be
addressed to the corporation's registered agent at its registered
office or to the corporation or its secretary at its principal office
shown in its most recent annual report, or in the case of a foreign
corporation that has not yet delivered its annual report in its
application for a certificate of authority.
(c) Notice provided in an electronic transmission. Notice provided
in an electronic transmission, if in comprehensible form, is effective
when it: (i) Is electronically transmitted to an address, location, or
system designated by the recipient for that purpose; or (ii) has been
posted on an electronic network and a separate record of the posting
has been delivered to the recipient together with comprehensible
instructions regarding how to obtain access to the posting on the
electronic network.
(4) If this title prescribes notice requirements for particular
circumstances, those requirements govern. If articles of incorporation
or bylaws prescribe notice requirements, not inconsistent with this
section or other provisions of this title, those requirements govern.
Sec. 3 RCW 23B.02.020 and 2002 c 297 s 11 are each amended to
read as follows:
(1) The articles of incorporation must set forth:
(a) A corporate name for the corporation that satisfies the
requirements of RCW 23B.04.010;
(b) The number of shares the corporation is authorized to issue in
accordance with RCW 23B.06.010 and 23B.06.020;
(c) The street address of the corporation's initial registered
office and the name of its initial registered agent at that office in
accordance with RCW 23B.05.010; and
(d) The name and address of each incorporator in accordance with
RCW 23B.02.010.
(2) The articles of incorporation or bylaws must either specify the
number of directors or specify the process by which the number of
directors will be fixed, unless the articles of incorporation dispense
with a board of directors pursuant to RCW 23B.08.010.
(3) Unless its articles of incorporation provide otherwise, a
corporation is governed by the following provisions:
(a) The board of directors may adopt bylaws to be effective only in
an emergency as provided by RCW 23B.02.070;
(b) A corporation has the purpose of engaging in any lawful
business under RCW 23B.03.010;
(c) A corporation has perpetual existence and succession in its
corporate name under RCW 23B.03.020;
(d) A corporation has the same powers as an individual to do all
things necessary or convenient to carry out its business and affairs,
including itemized powers under RCW 23B.03.020;
(e) All shares are of one class and one series, have unlimited
voting rights, and are entitled to receive the net assets of the
corporation upon dissolution under RCW 23B.06.010 and 23B.06.020;
(f) If more than one class of shares is authorized, all shares of
a class must have preferences, limitations, and relative rights
identical to those of other shares of the same class under RCW
23B.06.010;
(g) If the board of directors is authorized to designate the number
of shares in a series, the board may, after the issuance of shares in
that series, reduce the number of authorized shares of that series
under RCW 23B.06.020;
(h) The board of directors must ((authorize)) approve any issuance
of shares under RCW 23B.06.210;
(i) Shares may be issued pro rata and without consideration to
shareholders under RCW 23B.06.230;
(j) Shares of one class or series may not be issued as a share
dividend with respect to another class or series, unless there are no
outstanding shares of the class or series to be issued, or a majority
of votes entitled to be cast by such class or series approve as
provided in RCW 23B.06.230;
(k) A corporation may issue rights, options, or warrants for the
purchase of shares of the corporation under RCW 23B.06.240;
(l) A shareholder has, and may waive, a preemptive right to acquire
the corporation's unissued shares as provided in RCW 23B.06.300;
(m) Shares of a corporation acquired by it may be reissued under
RCW 23B.06.310;
(n) The board may authorize and the corporation may make
distributions not prohibited by statute under RCW 23B.06.400;
(o) The preferential rights upon dissolution of certain
shareholders will be considered a liability for purposes of determining
the validity of a distribution under RCW 23B.06.400;
(p) Corporate action may be ((taken)) approved by shareholders by
unanimous consent of all shareholders entitled to vote on the corporate
action, unless the approval of a lesser number of shareholders is
permitted as provided in RCW 23B.07.040, which shareholder consent
shall be in the form of a record;
(q) Unless this title requires otherwise, the corporation is
required to give notice only to shareholders entitled to vote at a
meeting and the notice for an annual meeting need not include the
purpose for which the meeting is called under RCW 23B.07.050;
(r) A corporation that is a public company shall hold a special
meeting of shareholders if the holders of at least ten percent of the
votes entitled to be cast on any issue proposed to be considered at the
meeting demand a meeting under RCW 23B.07.020;
(s) Subject to statutory exceptions, each outstanding share,
regardless of class, is entitled to one vote on each matter voted on at
a shareholders' meeting under RCW 23B.07.210;
(t) A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum, unless the title provides otherwise
under RCW 23B.07.250 and 23B.07.270;
(u) Corporate action on a matter, other than election of directors,
by a voting group is approved if the votes cast within the voting group
favoring the corporate action exceed the votes cast opposing the
corporate action, unless this title requires a greater number of
affirmative votes under RCW 23B.07.250;
(v) All shares of one or more classes or series that are entitled
to vote will be counted together collectively on any matter at a
meeting of shareholders under RCW 23B.07.260;
(w) Directors are elected by cumulative voting under RCW
23B.07.280;
(x) Directors are elected by a plurality of votes cast by shares
entitled to vote under RCW 23B.07.280, except as otherwise provided in
the articles of incorporation or a bylaw adopted pursuant to RCW
23B.10.205;
(y) A corporation must have a board of directors under RCW
23B.08.010;
(z) All corporate powers must be exercised by or under the
authority of, and the business and affairs of the corporation managed
under the direction of, its board of directors under RCW 23B.08.010;
(aa) The shareholders may remove one or more directors with or
without cause under RCW 23B.08.080;
(bb) A vacancy on the board of directors may be filled by the
shareholders or the board of directors under RCW 23B.08.100;
(cc) A corporation shall indemnify a director who was wholly
successful in the defense of any proceeding to which the director was
a party because the director is or was a director of the corporation
against reasonable expenses incurred by the director in connection with
the proceeding under RCW 23B.08.520;
(dd) A director of a corporation who is a party to a proceeding may
apply for indemnification of reasonable expenses incurred by the
director in connection with the proceeding to the court conducting the
proceeding or to another court of competent jurisdiction under RCW
23B.08.540;
(ee) An officer of the corporation who is not a director is
entitled to mandatory indemnification under RCW 23B.08.520, and is
entitled to apply for court-ordered indemnification under RCW
23B.08.540, in each case to the same extent as a director under RCW
23B.08.570;
(ff) The corporation may indemnify and advance expenses to an
officer, employee, or agent of the corporation who is not a director to
the same extent as to a director under RCW 23B.08.570;
(gg) A corporation may indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent,
consistent with law, that may be provided by its articles of
incorporation, bylaws, general or specific ((action)) approval of its
board of directors, or contract under RCW 23B.08.570;
(hh) A corporation's board of directors may adopt certain
amendments to the corporation's articles of incorporation without
shareholder ((action)) approval under RCW 23B.10.020;
(ii) Unless this title or the board of directors requires a greater
vote or a vote by voting groups, an amendment to the corporation's
articles of incorporation must be approved by each voting group
entitled
to vote on the proposed amendment by two-thirds, or, in the
case of a public company, a majority, of all the votes entitled to be
cast by that voting group under RCW 23B.10.030;
(jj) A corporation's board of directors may amend or repeal the
corporation's bylaws unless this title reserves this power exclusively
to the shareholders in whole or in part, or unless the shareholders in
amending or repealing a bylaw provide expressly that the board of
directors may not amend or repeal that bylaw under RCW 23B.10.200;
(kk) Unless this title or the board of directors require a greater
vote or a vote by voting groups, a plan of merger or share exchange
must be approved by each voting group entitled to vote on the merger or
share exchange by two-thirds of all the votes entitled to be cast by
that voting group under RCW 23B.11.030;
(ll) Approval by the shareholders of the sale, lease, exchange, or
other disposition of all, or substantially all, the corporation's
property in the usual and regular course of business is not required
under RCW 23B.12.010;
(mm) Approval by the shareholders of the mortgage, pledge,
dedication to the repayment of indebtedness, or other encumbrance of
any or all of the corporation's property, whether or not in the usual
and regular course of business, is not required under RCW 23B.12.010;
(nn) Unless the board of directors requires a greater vote or a
vote by voting groups, a sale, lease, exchange, or other disposition of
all or substantially all of the corporation's property, other than in
the usual and regular course of business, must be approved by each
voting group entitled to vote on such transaction by two-thirds of all
votes entitled to be cast by that voting group under RCW 23B.12.020;
and
(oo) Unless the board of directors requires a greater vote or a
vote by voting groups, a proposal to dissolve must be approved by each
voting group entitled to vote on the dissolution by two-thirds of all
votes entitled to be cast by that voting group under RCW 23B.14.020.
(4) Unless its articles of incorporation or its bylaws provide
otherwise, a corporation is governed by the following provisions:
(a) The board of directors may ((authorize)) approve the issuance
of some or all of the shares of any or all of the corporation's classes
or series without certificates under RCW 23B.06.260;
(b) A corporation that is not a public company shall hold a special
meeting of shareholders if the holders of at least ten percent of the
votes entitled to be cast on any issue proposed to be considered at the
meeting demand a meeting under RCW 23B.07.020;
(c) A director need not be a resident of this state or a
shareholder of the corporation under RCW 23B.08.020;
(d) The board of directors may fix the compensation of directors
under RCW 23B.08.110;
(e) Members of the board of directors may participate in a meeting
of the board by any means of similar communication by which all
directors participating can hear each other during the meeting under
RCW 23B.08.200;
(f) Corporate action permitted or required by this title to be
taken at a board of directors' meeting may be ((taken)) approved
without a meeting if ((action is taken)) approved by all members of the
board under RCW 23B.08.210;
(g) Regular meetings of the board of directors may be held without
notice of the date, time, place, or purpose of the meeting under RCW
23B.08.220;
(h) Special meetings of the board of directors must be preceded by
at least two days' notice of the date, time, and place of the meeting,
and the notice need not describe the purpose of the special meeting
under RCW 23B.08.220;
(i) A quorum of a board of directors consists of a majority of the
number of directors under RCW 23B.08.240;
(j) If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the board of
directors under RCW 23B.08.240;
(k) A board of directors may create one or more committees and
appoint members of the board of directors to serve on them under RCW
23B.08.250; and
(l) Unless approved by the shareholders, a corporation may
indemnify, or make advances to, a director for reasonable expenses
incurred in the defense of any proceeding to which the director was a
party because of being a director only to the extent such action is
consistent with RCW 23B.08.500 through 23B.08.580.
(5) The articles of incorporation may contain the following
provisions:
(a) The names and addresses of the individuals who are to serve as
initial directors;
(b) The par value of any authorized shares or classes of shares;
(c) Provisions not inconsistent with law related to the management
of the business and the regulation of the affairs of the corporation;
(d) Any provision that under this title is required or permitted to
be set forth in the bylaws;
(e) Provisions not inconsistent with law defining, limiting, and
regulating the powers of the corporation, its board of directors, and
shareholders;
(f) Provisions authorizing ((shareholder)) corporate action to be
((taken)) approved by consent of less than all of the shareholders
entitled to vote on the corporate action, in accordance with RCW
23B.07.040;
(g) If the articles of incorporation authorize dividing shares into
classes, the election of all or a specified number of directors may be
effected by the holders of one or more authorized classes of shares
under RCW 23B.08.040;
(h) The terms of directors may be staggered under RCW 23B.08.060;
(i) Shares may be redeemable or convertible (i) at the option of
the corporation, the shareholder, or another person, or upon the
occurrence of a designated event; (ii) for cash, indebtedness,
securities, or other property; or (iii) in a designated amount or in an
amount determined in accordance with a designated formula or by
reference to extrinsic data or events under RCW 23B.06.010; and
(j) A director's personal liability to the corporation or its
shareholders for monetary damages for conduct as a director may be
eliminated or limited under RCW 23B.08.320.
(6) The articles of incorporation or the bylaws may contain the
following provisions:
(a) A restriction on the transfer or registration of transfer of
the corporation's shares under RCW 23B.06.270;
(b) Shareholders may participate in a meeting of shareholders by
any means of communication by which all persons participating in the
meeting can hear each other under RCW 23B.07.080;
(c) A quorum of the board of directors may consist of as few as
one-third of the number of directors under RCW 23B.08.240;
(d) If the corporation is registered as an investment company under
the investment company act of 1940, a provision limiting the
requirement to hold an annual meeting of shareholders as provided in
RCW 23B.07.010(2); and
(e) If the corporation is registered as an investment company under
the investment company act of 1940, a provision establishing terms of
directors which terms may be longer than one year as provided in RCW
23B.05.050.
(7) The articles of incorporation need not set forth any of the
corporate powers enumerated in this title.
Sec. 4 RCW 23B.02.050 and 2002 c 297 s 13 are each amended to
read as follows:
(1) After incorporation:
(a) If initial directors are named in the articles of
incorporation, the initial directors shall hold an organizational
meeting, at the call of a majority of the directors, to complete the
organization of the corporation by appointing officers, adopting
bylaws, and carrying on any other business brought before the meeting;
(b) If initial directors are not named in the articles, the
incorporator or incorporators shall hold an organizational meeting at
the call of a majority of the incorporators:
(i) To elect directors and complete the organization of the
corporation; or
(ii) To elect a board of directors who shall complete the
organization of the corporation.
(2) Corporate action required or permitted by this title to be
((taken)) approved by incorporators at an organizational meeting may be
((taken)) approved without a meeting if the ((action taken)) approval
is evidenced by the consent of each of the incorporators in the form of
a record describing the corporate action ((taken)) so approved and
executed by each incorporator.
(3) An organizational meeting may be held in or out of this state.
(4) A corporation's initial report containing the information
described in RCW 23B.16.220(1) must be delivered to the secretary of
state within one hundred twenty days of the date on which the
corporation's articles of incorporation were filed.
Sec. 5 RCW
23B.02.060 and 1989 c 165 s 31 are each amended to
read as follows:
(1) The incorporators or board of directors of a corporation shall
adopt initial bylaws for the corporation.
(2) The articles of incorporation or bylaws must either specify
the number of directors or specify the process by which the number of
directors will be fixed, unless the articles of incorporation dispense
with a board of directors pursuant to RCW 23B.08.010;
(3) Unless its articles of incorporation or its bylaws provide
otherwise, a corporation is governed by the following provisions:
(a) The board of directors may ((authorize)) approve the issuance
of some or all of the shares of any or all of the corporation's classes
or series without certificates under RCW 23B.06.260;
(b) A corporation that is not a public company shall hold a special
meeting of shareholders if the holders of at least ten percent of the
votes entitled to be cast on any issue proposed to be considered at the
meeting demand a meeting under RCW 23B.07.020;
(c) A director need not be a resident of this state or a
shareholder of the corporation under RCW 23B.08.020;
(d) The board of directors may fix the compensation of directors
under RCW 23B.08.110;
(e) Members of the board of directors may participate in a meeting
of the board by means of a conference telephone or similar
communication equipment under RCW 23B.08.200;
(f) Corporate action permitted or required by this title to be
((taken)) approved at a board of directors' meeting may be ((taken))
approved without a meeting if the corporate action is ((taken))
approved by all members of the board under RCW 23B.08.210;
(g) Regular meetings of the board of directors may be held without
notice of the date, time, place, or purpose of the meeting under RCW
23B.08.220;
(h) Special meetings of the board of directors must be preceded by
at least two days' notice of the date, time, and place of the meeting,
and the notice need not describe the purpose of the special meeting
under RCW 23B.08.220;
(i) A quorum of a board of directors consists of a majority of the
number of directors under RCW 23B.08.240;
(j) If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the board of
directors under RCW 23B.08.240;
(k) A board of directors may create one or more committees and
appoint members of the board of directors to serve on them under RCW
23B.08.250; and
(l) Unless approved by shareholders, a corporation may indemnify,
or make advances to, a director only for reasonable expenses incurred
in the defense of any proceeding to which the director was a party
because of being a director to the extent such action is consistent
with RCW 23B.08.500 through 23B.08.580 under RCW 23B.08.590.
(4) The bylaws of a corporation may contain any provision, not in
conflict with law or the articles of incorporation, for managing the
business and regulating the affairs of the corporation, including but
not limited to the following:
(a) A restriction on the transfer or registration of transfer of
the corporation's shares under RCW 23B.06.270;
(b) Shareholders may participate in a meeting of shareholders by
any means of communication by which all persons participating in the
meeting can hear each other under RCW 23B.07.080; and
(c) A quorum of the board of directors may consist of as few as
one-third of the number of directors under RCW 23B.08.240.
Sec. 6 RCW 23B.06.020 and 1998 c 104 s 2 are each amended to read
as follows:
(1) If the articles of incorporation so provide, the board of
directors may determine, in whole or part, the preferences,
limitations, voting powers, and relative rights, within the limits set
forth in RCW 23B.06.010(1)(b) and this section of (a) any class of
shares before the issuance of any shares of that class, or (b) one or
more series within a class, and designate the number of shares within
that series, before the issuance of any shares of that series.
(2) Each series of a class must be given a distinguishing
designation.
(3) All shares of a series must have preferences, limitations,
voting powers, and relative rights identical with those of other shares
of the same series, except to the extent otherwise permitted by RCW
23B.06.010(1)(b). All shares of a series must have preferences,
limitations, voting powers, and relative rights identical with those of
shares of other series of the same class, except to the extent
otherwise provided in the description of the series.
(4) Before issuing any shares of a class or series created under
this section, the corporation must deliver to the secretary of state
for filing articles of amendment, which are effective without
shareholder ((action)) approval, that set forth:
(a) The name of the corporation;
(b) The text of the amendment determining the terms of the class or
series of shares;
(c) The date it was adopted; and
(d) The statement that the amendment was duly adopted by the board
of directors.
(5) Unless the articles of incorporation provide otherwise, the
board of directors may, after the issuance of shares of a series whose
number it is authorized to designate, amend the resolution establishing
the series to decrease, but not below the number of shares of such
series then outstanding, the number of authorized shares of that
series, by filing articles of amendment, which are effective without
shareholder ((action)) approval, in the manner provided in subsection
(4) of this section.
Sec. 7 RCW 23B.06.040 and 1989 c 165 s 47 are each amended to
read as follows:
(1) A corporation may:
(a) Issue fractions of a share or pay in money the value of
fractions of a share;
(b) Arrange for disposition of fractional shares by the
shareholders;
(c) Issue scrip in registered or bearer form entitling the holder
to receive a full share upon surrendering enough scrip to equal a full
share.
(2) Each certificate representing scrip must be conspicuously
labeled "scrip" and must contain the information required by RCW
23B.06.250(2).
(3) The holder of a fractional share is entitled to exercise the
rights of a shareholder, including the right to vote, to receive
dividends, and to participate in the assets of the corporation upon
liquidation. The holder of scrip is not entitled to any of these
rights unless the scrip provides for them.
(4) The board of directors may ((authorize)) approve the issuance
of scrip subject to any condition considered desirable, including:
(a) That the scrip will become void if not exchanged for full
shares before a specified date; and
(b) That the shares for which the scrip is exchangeable may be sold
and the proceeds paid to the scripholders.
Sec. 8 RCW 23B.06.210 and 1989 c 165 s 49 are each amended to
read as follows:
(1) The powers granted in this section to the board of directors
may be reserved to the shareholders by the articles of incorporation.
(2) Any issuance of shares must be ((authorized)) approved by the
board of directors. Shares may be issued for consideration consisting
of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed, contracts for
services to be performed, or other securities of the corporation.
(3) A good faith determination by the board of directors that the
consideration received or to be received for the shares to be issued is
adequate is conclusive insofar as the adequacy of consideration relates
to whether the shares are validly issued, fully paid and nonassessable.
When the board of directors has made such a determination and the
corporation has received the consideration, the shares issued therefor
are fully paid and nonassessable.
(4) The corporation may place in escrow shares issued for a
contract for future services or benefits or a promissory note, or make
other arrangements to restrict the transfer of the shares, and may
credit distributions in respect to the shares against their purchase
price, until the services are performed, the benefits are received, or
the note is paid. If the services are not performed, the benefits are
not received, or the note is not paid, the shares escrowed or
restricted and the distributions credited may be canceled in whole or
part.
(5) Where it cannot be determined that outstanding shares are fully
paid and nonassessable, there shall be a conclusive presumption that
such
shares are fully paid and nonassessable if the board of directors
makes a good faith determination that there is no substantial evidence
that the full consideration for such shares has not been paid.
Sec. 9 RCW 23B.06.220 and 1989 c 165 s 50 are each amended to
read as follows:
A purchaser from a corporation of its own shares is not liable to
the corporation or its creditors with respect to the shares except to
pay the consideration for which the shares were ((authorized)) approved
to be issued under RCW 23B.06.210 or specified in the subscription
agreement under RCW 23B.06.200.
Sec. 10 RCW 23B.06.260 and 2002 c 297 s 18 are each amended to
read as follows:
(1) Unless the articles of incorporation or bylaws provide
otherwise, the board of directors of a corporation may ((authorize))
approve the issue of some or all of the shares of any or all of its
classes or series without certificates. The ((authorization)) approval
does not affect shares already represented by certificates until they
are surrendered to the corporation.
(2) Within a reasonable time after the issue or transfer of shares
without certificates, the corporation shall send the shareholder a
record containing the information required on certificates by RCW
23B.06.250 (2) and (3), and, if applicable, RCW 23B.06.270.
Sec. 11 RCW 23B.06.310 and 1989 c 165 s 58 are each amended to
read as follows:
(1) A corporation may acquire its own shares and shares so acquired
constitute authorized but unissued shares.
(2) If the articles of incorporation prohibit the reissue of
acquired shares, the number of authorized shares is reduced by the
number of shares acquired, effective upon amendment of the articles of
incorporation.
(3) The board of directors may adopt articles of amendment under
this section without shareholder ((action)) approval and deliver them
to the secretary of state for filing. The articles must set forth:
(a) The name of the corporation;
(b) The reduction in the number of authorized shares, itemized by
class and series; and
(c) The total number of authorized shares, itemized by class and
series, remaining after reduction of the shares.
Sec. 12 RCW 23B.06.400 and 2006 c 52 s 2 are each amended to read
as follows:
(1) A board of directors may ((authorize)) approve and the
corporation may make distributions to its shareholders subject to
restriction by the articles of incorporation and the limitation in
subsection (2) of this section.
(2) No distribution may be made if, after giving it effect:
(a) The corporation would not be able to pay its liabilities as
they become due in the usual course of business; or
(b) The corporation's total assets would be less than the sum of
its total liabilities plus, unless the articles of incorporation permit
otherwise, the amount that would be needed, if the corporation were to
be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of shareholders whose preferential
rights are superior to those receiving the distribution.
(3) For purposes of determinations under subsection (2) of this
section:
(a) The board of directors may base a determination that a
distribution is not prohibited under subsection (2) of this section
either on financial statements prepared on the basis of accounting
practices and principles that are reasonable in the circumstances or on
a fair valuation or other method that is reasonable in the
circumstances; and
(b) Indebtedness of a corporation, including indebtedness issued as
a distribution, is not considered a liability if its terms provide that
payment of principal and interest are made only if and to the extent
that payment of a distribution to shareholders could then be made under
this section.
(4) The effect of a distribution under subsection (2) of this
section is measured:
(a) In the case of a distribution of indebtedness, the terms of
which provide that payment of principal and interest are made only if
and to the extent that payment of a distribution to shareholders could
then be made under this section, each payment of principal or interest
is treated as a distribution, the effect of which is measured on the
date the payment is actually made; or
(b) In the case of any other distribution:
(i) If the distribution is by purchase, redemption, or other
acquisition of the corporation's shares, the effect of the distribution
is measured as of the earlier of the date any money or other property
is transferred or debt incurred by the corporation, or the date the
shareholder ceases to be a shareholder with respect to the acquired
shares;
(ii) If the distribution is of indebtedness other than that
described in subsection (4) (a) and (b)(i) of this section, the effect
of the distribution is measured as of the date the indebtedness is
distributed; and
(iii) In all other cases, the effect of the distribution is
measured as of the date the distribution is ((authorized)) approved if
payment occurs within one hundred twenty days after the date of
((authorization)) approval, or the date the payment is made if it
occurs more than one hundred twenty days after the date of
((authorization)) approval.
(5) A corporation's indebtedness to a shareholder incurred by
reason of a distribution made in accordance with this section is at
parity with the corporation's indebtedness to its general, unsecured
creditors except to the extent provided otherwise by agreement.
(6) In circumstances to which this section and related sections of
this title are applicable, such provisions supersede the applicability
of any other statutes of this state with respect to the legality of
distributions.
(7) A transfer of the assets of a dissolved corporation to a trust
or other successor entity of the type described in RCW 23B.14.030(4)
constitutes a distribution subject to subsection (2) of this section
only when and to the extent that the trust or successor entity
distributes assets to shareholders.
Sec. 13 RCW 23B.07.030 and 2002 c 297 s 22 are each amended to
read as follows:
(1) The superior court of the county in which the corporation's
registered office is located may, after notice to the corporation,
summarily order a meeting to be held:
(a) On application of any shareholder of the corporation entitled
to vote in the election of directors at an annual meeting, if an annual
meeting was not held within the earlier of six months after the end of
the corporation's fiscal year or fifteen months after its last annual
meeting or approval of corporate action by shareholder consent in lieu
of such a meeting; or
(b) On application of a shareholder who executed a demand for a
special meeting valid under RCW 23B.07.020, if:
(i) Notice of the special meeting was not given within thirty days
after the date the demand was delivered to the corporation's secretary;
or
(ii) The special meeting was not held in accordance with the
notice.
(2) The court may, after notice to the corporation, fix the time
and place of the meeting, determine the shares and shareholders
entitled to participate in the meeting, specify a record date for
determining shareholders entitled to notice of and to vote at the
meeting, prescribe the manner, form, and content of the meeting notice,
fix the quorum required for specific matters to be considered at the
meeting, or direct that the votes represented at the meeting constitute
a quorum for ((action on)) approval of those matters, and enter other
orders necessary to accomplish the purpose or purposes of the meeting.
Sec. 14 RCW 23B.07.040 and 2002 c 297 s 23 are each amended to
read as follows:
(1)(a) Corporate action required or permitted by this title to be
((taken)) approved by a shareholder vote at a ((shareholders')) meeting
may be ((taken)) approved without a meeting or a vote if either:
(i) The corporate action is ((taken)) approved by all shareholders
entitled to vote on the corporate action; or
(ii) The corporate action is ((taken)) approved by shareholders
holding of record or otherwise entitled to vote in the aggregate not
less than the minimum number of votes that would be necessary to
((authorize or take)) approve such corporate action at a meeting at
which all shares entitled to vote on the corporate action were present
and voted, and at the time the corporate action is ((taken)) approved
the corporation is not a public company and is authorized to ((take))
approve such corporate action under this subsection (1)(a)(ii) by a
general or limited authorization contained in its articles of
incorporation.
(b) ((The taking of)) Corporate action may be approved by
shareholders without a meeting or a vote ((must be evidenced by one or
more consents, each in the form of a record describing the action
taken, executed)) by means of execution of a single consent or multiple
counterpart consents by shareholders holding of record or otherwise
entitled to vote in the aggregate not less than the minimum number of
votes necessary ((in order to take such action by consent)) under
(a)(i) or (ii) of this subsection((, and)). Any such shareholder
consent must: (i) Be in the form of an executed record; (ii) indicate
the date of execution of the consent by each shareholder who executes
it, which date must be on or after the applicable record date
determined in accordance with subsection (2) of this section; (iii)
describe the corporate action being approved; (iv) when delivered to
each shareholder for execution, include or be accompanied by the same
material that would have been required by this title to be delivered to
shareholders in or accompanying a notice of meeting at which the
proposed corporate action would have been submitted for shareholder
approval; and (v) be delivered to the corporation for inclusion in the
minutes or filing with the corporate records((, which consent shall be
set forth either (i) in an executed record or (ii) if the corporation
has designated an address, location, or system to which the consent may
be electronically transmitted and the consent is electronically
transmitted to the designated address, location, or system, in an
executed electronically transmitted record.)) in accordance with subsection (4) of this section. A
shareholder may withdraw an executed shareholder consent ((
(2) If not otherwise fixed under RCW 23B.07.030 or 23B.07.070, the
record date for determining shareholders entitled to take action
without a meeting is the date on which the first shareholder consent is
executed under subsection (1) of this section. Every consent shall
bear the date of execution of each shareholder who executes the
consent. A consent is not effective to take the action referred to in
the consent unless, within sixty days of the earliest dated consent
delivered to the corporation, consents executed by a sufficient number
of shareholders to take action are delivered to the corporation.
(3)only)) by
delivering a notice of withdrawal in the form of ((a)) an executed
record to the corporation prior to the time when ((consents sufficient
to authorize taking the action have been delivered to the corporation.)) shareholder consents sufficient to approve
the corporate action have been delivered to the corporation.
(4) Unless the shareholder consent specifies a later effective
date, action taken under this section is effective when: (a) Consents
sufficient to authorize taking the action have been delivered to the
corporation; and (b) the period of advance notice required by the
corporation's articles of incorporation to be given to any
nonconsenting shareholders has been satisfied.
(5) A consent executed
(2) The record date for determining shareholders entitled to
approve a corporate action without a meeting may be fixed under RCW
23B.07.030 or 23B.07.070, but if not so fixed shall be the date of
execution indicated on the earliest dated shareholder consent executed
under subsection (1) of this section, even though such shareholder
consent may not have been delivered to the corporation on that date.
(3)(a) Notice that shareholder consents are being sought under
subsection (1)(a) of this section shall be given, by the corporation or
by another person soliciting such consents, on or promptly after the
record date, to all shareholders entitled to vote on the record date
who have not yet executed the shareholder consent and, if this title
would otherwise require that notice of a meeting of shareholders to
consider the proposed corporate action be given to nonvoting
shareholders, to all nonvoting shareholders as of the record date.
Notice given under this subsection (3)(a) shall include or be
accompanied by the same information required to be included in or to
accompany the shareholder consent under subsection (1)(b)(iii) and (iv)
of this section.
(b) Notice that sufficient shareholder consents have been executed
to approve the proposed corporate action under either of subsection
(1)(a)(i) or (ii) of this section shall be given by the corporation,
promptly after delivery to the corporation of shareholder consents
sufficient to approve the corporate action in accordance with
subsection (4) of this section, to all shareholders entitled to vote on
the record date and, if this title would otherwise require that notice
of a meeting of shareholders to consider the proposed corporate action
be given to nonvoting shareholders, to all nonvoting shareholders as of
the record date.
(4) Unless the consent executed by shareholders specifies a later
effective date, shareholder approval obtained under this section is
effective when: (a) Executed shareholder consents sufficient to
approve the proposed corporate action have been delivered to the
corporation, either at an address designated by the corporation for
delivery of such shareholder consents or at the corporation's
registered office, or to such electronic address, location, or system
as the corporation may have designated for delivery of such shareholder
consents; and (b) any period of advance notice required by the
corporation's articles of incorporation to be given to any
nonconsenting shareholders has been satisfied. Executed shareholder
consents are not effective to approve a proposed corporate action
unless, within sixty days after the date of the earliest dated
shareholder consent delivered to the corporation, consents executed by
a sufficient number of shareholders to approve the corporate action are
delivered to the corporation.
(5) Approval of corporate action by execution of shareholder
consents under this section has the effect of a meeting vote and may be
described as such in any record, except that, if the corporate action
requires the filing of a certificate under any other section of this
title, the certificate so filed shall state, in lieu of any statement
required by that section concerning any vote of shareholders, that
((consent)) shareholder approval has been obtained in accordance with
this section and that notice to any nonconsenting shareholders has been
given ((as provided in this section.)) to the extent
required by this section.
(6) Notice of the taking of action by shareholders without a
meeting by less than unanimous consent of all shareholders entitled to
vote on the action shall be given, before the date on which the action
becomes effective, to those shareholders entitled to vote on the action
who have not consented and, if this title would otherwise require that
notice of a meeting of shareholders to consider the action be given to
nonvoting shareholders, to all nonvoting shareholders of the
corporation. The general or limited authorization in the corporation's
articles of incorporation authorizing shareholder action by less than
unanimous consent shall specify the amount and form of notice required
to be given to nonconsenting shareholders before the effective date of
the action. In the case of action of a type that would constitute a
significant business transaction under RCW 23B.19.020(15), the notice
shall be given no fewer than twenty days before the effective date of
the action. The notice shall be in the form of a record and shall
contain or be accompanied by the same material that, under this title,
would have been required to be delivered to nonconsenting or nonvoting
shareholders in a notice of meeting at which the proposed action would
have been submitted for shareholder action. If the action taken is of
a type that would entitle shareholders to exercise dissenters' rights
under RCW 23B.13.020(1), then the notice must comply with RCW
23B.13.220(2), RCW 23B.13.210 shall not apply, and all shareholders who
have not executed the consent taking the action are entitled to receive
the notice, demand payment under RCW 23B.13.230, and assert other
dissenters' rights as prescribed in chapter 23B.13 RCW
Sec. 15 RCW 23B.07.060 and 2002 c 297 s 24 are each amended to
read as follows:
(1) A shareholder may waive any notice required by this title, the
articles of incorporation, or bylaws before or after the date and time
of the meeting that is the subject of such notice, or in the case of
notice required by RCW 23B.07.040(((6)))(3), before or after the
corporate action to be ((taken)) approved by executed consent ((is))
becomes effective. Except as provided by subsections (2) and (3) of
this section, the waiver must be delivered by the shareholder entitled
to notice to the corporation for inclusion in the minutes or filing
with the corporate records, which waiver shall be set forth either (a)
in an executed and dated record or (b) if the corporation has
designated an address, location, or system to which the waiver may be
electronically transmitted and the waiver is electronically transmitted
to the designated address, location, or system, in an executed and
dated electronically transmitted record.
(2) A shareholder's attendance at a meeting waives objection to
lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting.
(3) A shareholder waives objection to consideration of a particular
matter at a meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects to
considering the matter when it is presented.
Sec. 16 RCW 23B.07.070 and 1989 c 165 s 66 are each amended to
read as follows:
(1) The bylaws may fix or provide the manner of fixing the record
date for one or more voting groups in order to determine the
shareholders entitled to notice of a shareholders' meeting, to demand
a special meeting, to vote, or to ((take)) approve any other corporate
action. If the bylaws do not fix or provide for fixing a record date,
the board of directors of the corporation may fix a future date as the
record date.
(2) If not otherwise fixed under subsection (1) of this section or
RCW 23B.07.030, the record date for determining shareholders entitled
to notice of and to vote at an annual or special shareholders' meeting
is the day before the first notice is delivered to shareholders.
(3) If the board of directors does not fix the record date for
determining shareholders entitled to a share dividend, it is the date
the board of directors authorizes the share dividend.
(4) If the board of directors does not fix the record date for
determining shareholders entitled to a distribution, other than one
involving a purchase, redemption, or other acquisition of the
corporation's shares, it is the date the board of directors authorizes
the distribution.
(5) A record date fixed under this section may not be more than
seventy days before the meeting ((or action requiring a
determination)) of shareholders or more than ten days prior to the date
on which the first shareholder consent is executed under RCW
23B.07.040(1)(b).
(6) A determination of shareholders entitled to notice of or to
vote at a shareholders' meeting is effective for any adjournment of the
meeting unless the board of directors fixes a new record date, which it
must do if the meeting is adjourned to a date more than one hundred
twenty days after the date fixed for the original meeting.
(7) If a court orders a meeting adjourned to a date more than one
hundred twenty days after the date fixed for the original meeting, it
may provide that the original record date continues in effect or it may
fix a new record date.
Sec. 17 RCW 23B.07.200 and 1989 c 165 s 68 are each amended to
read as follows:
(1) After fixing a record date for a meeting, a corporation shall
prepare an alphabetical list of the names of all its shareholders on
the record date who are entitled to notice of a shareholders' meeting.
The list must be arranged by voting group, and within each voting group
by class or series of shares, and show the address of and number of
shares held by each shareholder.
(2) The shareholders' list must be available for inspection by any
shareholder, beginning ten days prior to the meeting and continuing
through the meeting, at the corporation's principal office or at a
place identified in the meeting notice in the city where the meeting
will be held. A shareholder, the shareholder's agent, or the
shareholder's attorney is entitled to inspect the list, during regular
business hours and at the shareholder's expense, during the period it
is available for inspection.
(3) The corporation shall make the shareholders' list available at
the meeting, and any shareholder, the shareholder's agent, or the
shareholder's attorney is entitled to inspect the list at any time
during the meeting or any adjournment.
(4) If the corporation refuses to allow a shareholder, the
shareholder's agent, or the shareholder's attorney to inspect the
shareholders' list before or at the meeting, the superior court of the
county where a corporation's principal office, or, if none in this
state, its registered office, is located, on application of the
shareholder, may summarily order the inspection at the corporation's
expense and may postpone the meeting for which the list was prepared
until the inspection is complete.
(5) A shareholder's right to copy the shareholders' list, and a
shareholder's right to otherwise inspect and copy the record of
shareholders, is governed by RCW 23B.16.020(3).
(6) Refusal or failure to prepare or make available the
shareholders' list does not affect the validity of corporate action
((taken)) approved at the meeting.
Sec. 18 RCW 23B.07.250 and
1989 c 165 s 73 are each amended to
read as follows:
(1) Shares entitled to vote as a separate voting group may ((take))
approve a corporate action ((on a matter)) at a meeting only if a
quorum of those shares exists with respect to that ((matter)) corporate
action. Unless the articles of incorporation or this title provide
otherwise, a majority of the votes entitled to be cast on the
((matter)) corporate action by the voting group constitutes a quorum of
that voting group for ((action on that matter)) approval of that
corporate action.
(2) Once a share is represented for any purpose at a meeting other
than solely to object to holding the meeting or transacting business at
the meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting.
(3) If a quorum exists, a corporate action ((on a matter)), other
than the election of directors, is approved by a voting group if the
votes cast within the voting group favoring the corporate action exceed
the votes cast within the voting group opposing the corporate action,
unless the articles of incorporation or this title require a greater
number of affirmative votes.
(4) An amendment of articles of incorporation adding, changing, or
deleting either (i) a quorum for a voting group greater or lesser than
specified in subsection (1) of this section, or (ii) a voting
requirement for a voting group greater than specified in subsection (3)
of this section, is governed by RCW 23B.07.270.
(5) The election of directors is governed by RCW 23B.07.280.
Sec. 19 RCW 23B.07.260 and 2003 c 35 s 2 are each amended to read
as follows:
(1) If the articles of incorporation or this title provide for
voting on a ((matter)) corporate action by all shares entitled to vote
thereon, voting together as a single voting group and do not provide
for separate voting by any other voting group or groups with respect to
that ((matter)) corporate action, ((action on that matter is taken))
that corporate action is approved when voted upon by that single voting
group as provided in RCW 23B.07.250.
(2) If the articles of incorporation or this title provide for
voting by two or more voting groups on a ((matter)) corporate action,
((action on that matter is taken)) that corporate action is approved
only when voted upon by each of those voting groups as provided in RCW
23B.07.250.
Sec. 20 RCW 23B.07.270 and 1990 c 178 s 11 are each amended to
read as follows:
(1) The articles of incorporation may provide for a greater or
lesser quorum, but not less than one-third of the votes entitled to be
cast, for shareholders, or voting groups of shareholders, than is
provided for by this title.
(2) The articles of incorporation may provide for a greater voting
requirement for shareholders, or voting groups of shareholders, than is
provided for by this title.
(3) Under RCW 23B.10.030, 23B.11.030, 23B.12.020, and 23B.14.020,
the articles of incorporation may provide for a lesser vote than is
otherwise prescribed in those sections or for a lesser vote by separate
voting groups, so long as the vote provided for each voting group
entitled to vote separately on the plan or transaction is not less than
a majority of all the votes entitled to be cast on the plan or
transaction by that voting group.
(4) Except as provided in subsection (5) of this section, an
amendment to the articles of incorporation that adds, changes, or
deletes a greater or lesser quorum or voting requirement for a
particular corporate action must meet the same quorum requirement and
be adopted by the same vote and voting groups as are required ((to take
action)) under the quorum and voting requirements then in effect for
approval of the corporate action.
(5) An amendment to the articles of incorporation that adds,
changes, or deletes a greater or lesser quorum or voting requirement
for a merger, share exchange, sale of substantially all assets, or
dissolution must be adopted by the same vote and voting groups as are
required ((to take action)) under the quorum and voting requirements
then in effect for approval of the particular corporate action, or the
quorum and voting requirements then in effect for amendments to
articles of incorporation, whichever is greater.
Sec. 21 RCW
23B.07.280 and 1989 c 165 s 76 are each amended to
read as follows:
(1) Unless otherwise provided in the articles of incorporation,
shareholders entitled to vote at any election of directors are entitled
to cumulate votes by multiplying the number of votes they are entitled
to cast by the number of directors for whom they are entitled to vote
and to cast the product for a single candidate or distribute the
product among two or more candidates.
(2) Unless otherwise provided in the articles of incorporation or
in a bylaw adopted under RCW 23B.10.205, in any election of directors
the candidates elected are those receiving the largest numbers of votes
cast by the shares entitled to vote in the election, up to the number
of directors to be elected by such shares.
Sec. 22 RCW 23B.07.320 and 1995 c 47 s 6 are each amended to read
as follows:
(1) An agreement among the shareholders of a corporation that is
not contrary to public policy and that complies with this section is
effective among the shareholders and the corporation even though it is
inconsistent with one or more other provisions of this title in that
it:
(a) Eliminates the board of directors or restricts the discretion
or powers of the board of directors;
(b) Governs the ((authorization)) approval or making of
distributions whether or not in proportion to ownership of shares,
subject to the limitations in RCW 23B.06.400;
(c) Establishes who shall be directors or officers of the
corporation, or their terms of office or manner of selection or
removal;
(d) Governs, in general or in regard to specific matters, the
exercise or division of voting power by or between the shareholders and
directors or by or among any of them, including use of weighted voting
rights or director proxies;
(e) Establishes the terms and conditions of any agreement for the
transfer or use of property or the provision of services between the
corporation and any shareholder, director, officer, or employee of the
corporation or among any of them;
(f) Transfers to one or more shareholders or other persons all or
part of the authority to exercise the corporate powers or to manage the
business and affairs of the corporation;
(g) Provides a process by which a deadlock among directors or
shareholders may be resolved;
(h) Requires dissolution of the corporation at the request of one
or more shareholders or upon the occurrence of a specified event or
contingency; or
(i) Otherwise governs the exercise of the corporate powers or the
management of the business and affairs of the corporation or the
relationship among the shareholders, the directors, and the
corporation, or among any of them.
(2) An agreement authorized by this section shall be:
(a) Set forth in a written agreement that is signed by all persons
who are shareholders at the time of the agreement and is made known to
the corporation;
(b) Subject to amendment only by all persons who are shareholders
at the time of the amendment, unless the agreement provides otherwise;
and
(c) Valid for ten years, unless the agreement provides otherwise.
(3) The existence of an agreement authorized by this section shall
be noted conspicuously on the front or back of each certificate for
outstanding shares or on the information statement required by RCW
23B.06.260(2). If at the time of the agreement the corporation has
shares outstanding represented by certificates, the corporation shall
recall the outstanding certificates and issue substitute certificates
that comply with this subsection. The failure to note the existence of
the agreement on the certificate or information statement shall not
affect the validity of the agreement or any action taken pursuant to
it. Unless the agreement provides otherwise, any person who acquires
outstanding or newly issued shares in the corporation after an
agreement authorized by this section has been effected, whether by
purchase, gift, operation of law, or otherwise, is deemed to have
assented to the agreement and to be a party to the agreement. A
purchaser of shares who is aggrieved because he or she at the time of
purchase did not have actual or constructive knowledge of the existence
of the agreement may either: (a) Bring an action to rescind the
purchase within the earlier of ninety days after discovery of the
existence of the agreement or two years after the purchase of the
shares; or (b) continue to hold the shares subject to the agreement but
with a right of action for any damages resulting from nondisclosure of
the existence of the agreement. A purchaser shall be deemed to have
constructive knowledge of the existence of the agreement if its
existence is noted on the certificate or information statement for the
shares in compliance with this subsection and, if the shares are not
represented by a certificate, the information statement is delivered to
the purchaser at or prior to the time of purchase of the shares.
(4) An agreement authorized by this section shall cease to be
effective when shares of the corporation are listed on a national
securities exchange or regularly traded in a market maintained by one
or more members of a national or affiliated securities association.
(5) An agreement authorized by this section that limits the
discretion or powers of the board of directors shall relieve the
directors of, and impose upon the person or persons in whom such
discretion or powers are vested, liability for acts or omissions
imposed by law on directors to the extent that the discretion or powers
of the directors are limited by the agreement.
(6) The existence or performance of an agreement authorized by this
section shall not be a ground for imposing personal liability on any
shareholder for the acts or debts of the corporation even if the
agreement or its performance treats the corporation as if it were a
partnership or results in failure to observe the corporate formalities
otherwise applicable to the matters governed by the agreement.
(7) Incorporators or subscribers for shares may act as shareholders
with respect to an agreement authorized by this section if no shares
have been issued when the agreement is made.
Sec. 23 RCW 23B.08.030 and 2007 c 467 s 1 are each amended to
read as follows:
(1) A board of directors must consist of one or more individuals,
with the number specified in or fixed in accordance with the articles
of incorporation or bylaws.
(2) Directors are elected at the first annual shareholders' meeting
and at each annual meeting thereafter unless (a) their terms are
staggered under RCW 23B.08.060, or (b) their terms are otherwise
governed by RCW 23B.05.050. Directors also may be elected by execution
of a shareholder consent ((action)) under RCW 23B.07.040.
Sec. 24 RCW 23B.08.210 and 2002 c 297 s 29 are each amended to
read as follows:
(1) Unless the articles of incorporation or bylaws provide
otherwise, corporate action required or permitted by this title to be
((taken)) approved at a board of directors' meeting may be ((taken))
approved without a meeting if the corporate action is ((taken))
approved by all members of the board. The approval of the corporate
action must be evidenced by one or more consents describing the
((action taken)) corporate action being approved, executed by each
director either before or after the ((action taken)) corporate action
becomes effective, and delivered to the corporation for inclusion in
the minutes or filing with the corporate records, each of which
consents shall be set forth either (a) in an executed record or (b) if
the corporation has designated an address, location, or system to which
the consents may be electronically transmitted and the consent is
electronically transmitted to the designated address, location, or
system, in an executed electronically transmitted record.
(2) Corporate action ((taken)) is approved under this section ((is
effective)) when the last director executes the consent((, unless the
consent specifies a later effective date)).
(3) A consent under this section has the effect of a meeting vote
and may be described as such in any record.
Sec. 25 RCW 23B.08.230 and 2002 c 297 s 30 are each amended to
read as follows:
(1) A director may waive any notice required by this title, the
articles of incorporation, or bylaws before or after the date and time
stated in the notice, and such waiver shall be equivalent to the giving
of such notice. Except as provided by subsection (2) of this section,
the waiver must be delivered by the director entitled to the notice to
the corporation for inclusion in the minutes or filing with the
corporate records, which waiver shall be set forth either (a) in an
executed record or (b) if the corporation has designated an address,
location, or system to which the waiver may be electronically
transmitted and the waiver has been electronically transmitted to the
designated address, location, or system, in an executed electronically
transmitted record.
(2) A director's attendance at or participation in a meeting waives
any required notice to the director of the meeting unless the director
at the beginning of the meeting, or promptly upon the director's
arrival, objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to any corporate
action ((taken)) approved at the meeting.
Sec. 26 RCW 23B.08.240 and 2002 c 297 s 31 are each amended to
read as follows:
(1) Unless the articles of incorporation or bylaws require a
greater or lesser number, a quorum of a board of directors consists of
a majority of the number of directors specified in or fixed in
accordance with the articles of incorporation or bylaws.
(2) Notwithstanding subsection (1) of this section, a quorum of a
board of directors may in no event be less than one-third of the number
of directors specified in or fixed in accordance with the articles of
incorporation or bylaws.
(3) If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the board of
directors unless the articles of incorporation or bylaws require the
vote of a greater number of directors.
(4) A director who is present at a meeting of the board of
directors when corporate action is ((taken)) approved is deemed to have
assented to the corporate action ((taken)) unless: (a) The director
objects at the beginning of the meeting, or promptly upon the
director's arrival, to holding it or transacting business at the
meeting; (b) the director's dissent or abstention ((from)) as to the
corporate action ((taken)) is entered in the minutes of the meeting; or
(c) the director delivers notice of the director's dissent or
abstention as to the corporate action to the presiding officer of the
meeting before ((its)) adjournment or to the corporation within a
reasonable time after adjournment of the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the
corporate action ((taken)).
Sec. 27 RCW 23B.08.250 and 1989 c 165
s 96 are each amended to
read as follows:
(1) Unless the articles of incorporation or bylaws provide
otherwise, a board of directors may create one or more committees of
directors. Each committee must have two or more members, who serve at
the pleasure of the board of directors.
(2) The creation of a committee and appointment of members to it
must be approved by the greater of (a) a majority of all the directors
in office when the ((action)) creation of the committee is ((taken))
approved or (b) the number of directors required by the articles of
incorporation or bylaws to ((take action)) approve the creation of the
committee under RCW 23B.08.240.
(3) RCW 23B.08.200 through 23B.08.240, which govern meetings,
approval of corporate action without meetings, notice and waiver of
notice, and quorum and voting requirements of the board of directors,
apply to committees and their members as well.
(4) To the extent specified by the board of directors or in the
articles of incorporation or bylaws, each committee may exercise the
authority of the board of directors under RCW 23B.08.010.
(5) A committee may not, however:
(a) ((Authorize or)) Approve a distribution except according to a
general formula or method prescribed by the board of directors;
(b) Approve or propose to shareholders corporate action that this
title requires be approved by shareholders;
(c) Fill vacancies on the board of directors or on any of its
committees;
(d) Amend articles of incorporation pursuant to RCW 23B.10.020;
(e) Adopt, amend, or repeal bylaws;
(f) Approve a plan of merger not requiring shareholder approval; or
(g) ((Authorize or)) Approve the issuance or sale or contract for
sale of shares, or determine the designation and relative rights,
preferences, and limitations of a class or series of shares, except
that the board of directors may authorize a committee, or a senior
executive officer of the corporation to do so within limits
specifically prescribed by the board of directors.
(6) The creation of, delegation of authority to, or approval of
corporate action by a committee does not alone constitute compliance by
a director with the standards of conduct described in RCW 23B.08.300.
Sec. 28 RCW 23B.08.500 and 1989 c 165 s 105 are each amended to
read as follows:
For purposes of RCW 23B.08.510 through 23B.08.600:
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in which the
predecessor's existence ceased upon ((consummation)) the effective date
of the transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation, is
or was serving at the corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be serving an
employee benefit plan at the corporation's request if the director's
duties to the corporation also impose duties on, or otherwise involve
services by, the director to the plan or to participants in or
beneficiaries of the plan. "Director" includes, unless the context
requires otherwise, the estate or personal representative of a
director.
(3) "Expenses" include counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine, including an excise tax assessed with respect to an
employee benefit plan, or reasonable expenses incurred with respect to
a proceeding.
(5) "Official capacity" means: (a) When used with respect to a
director, the office of director in a corporation; and (b) when used
with respect to an individual other than a director, as contemplated in
RCW 23B.08.570, the office in a corporation held by the officer or the
employment or agency relationship undertaken by the employee or agent
on behalf of the corporation. "Official capacity" does not include
service for any other foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan, or other
enterprise.
(6) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal.
Sec. 29 RCW
23B.08.550 and 1989 c 165 s 110 are each amended to
read as follows:
(1) A corporation may not indemnify a director under RCW 23B.08.510
unless ((authorized)) approved in the specific case after a
determination has been made that indemnification of the director is
permissible in the circumstances because the director has met the
standard of conduct set forth in RCW 23B.08.510.
(2) The determination shall be made:
(a) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(b) If a quorum cannot be obtained under (a) of this subsection, by
majority vote of a committee duly designated by the board of directors,
in which designation directors who are parties may participate,
consisting solely of two or more directors not at the time parties to
the proceeding;
(c) By special legal counsel:
(i) Selected by the board of directors or its committee in the
manner prescribed in (a) or (b) of this subsection; or
(ii) If a quorum of the board of directors cannot be obtained under
(a) of this subsection and a committee cannot be designated under (b)
of this subsection, selected by majority vote of the full board of
directors, in which selection directors who are parties may
participate; or
(d) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may
not be voted on the determination.
(3) ((Authorization)) Approval of indemnification and evaluation as
to reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
determination is made by special legal counsel, ((authorization))
approval of indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under subsection (2)(c) of
this section to select counsel.
Sec. 30 RCW 23B.08.700 and 1989 c 165 s 116 are each amended to
read as follows:
For purposes of RCW 23B.08.710 through 23B.08.730:
(1) "Conflicting interest" with respect to a corporation means the
interest a director of the corporation has respecting a transaction
effected or proposed to be effected by the corporation, or by a
subsidiary of the corporation or any other entity in which the
corporation has a controlling interest, if:
(a) Whether or not the transaction is brought before the board of
directors of the corporation for action, the director knows at the time
of commitment that the director or a related person is a party to the
transaction or has a beneficial financial interest in or so closely
linked to the transaction and of such financial significance to the
director or a related person that the interest would reasonably be
expected to exert an influence on the director's judgment if the
director were called upon to vote on the transaction; or
(b) The transaction is brought, or is of such character and
significance to the corporation that it would in the normal course be
brought, before the board of directors of the corporation for action,
and the director knows at the time of commitment that any of the
following persons is either a party to the transaction or has a
beneficial financial interest in or so closely linked to the
transaction and of such financial significance to the person that the
interest would reasonably be expected to exert an influence on the
director's judgment if the director were called upon to vote on the
transaction: (i) An entity, other than the corporation, of which the
director is a director, general partner, agent, or employee; (ii) a
person that controls one or more of the entities specified in (b)(i) of
this subsection or an entity that is controlled by, or is under common
control with, one or more of the entities specified in (b)(i) of this
subsection; or (iii) an individual who is a general partner, principal,
or employer of the director.
(2) "Director's conflicting interest transaction" with respect to
a corporation means a transaction effected or proposed to be effected
by the corporation, or by a subsidiary of the corporation or any other
entity in which the corporation has a controlling interest, respecting
which a director of the corporation has a conflicting interest.
(3) "Related person" of a director means (a) the spouse, or a
parent or sibling thereof, of the director, or a child, grandchild,
sibling, parent, or spouse of any thereof, of the director, or an
individual having the same home as the director, or a trust or estate
of which an individual specified herein is a substantial beneficiary;
or (b) a trust, estate, incompetent, conservatee, or minor of which the
director is a fiduciary.
(4) "Required disclosure" means disclosure by the director who has
a conflicting interest of (a) the existence and nature of the
director's conflicting interest, and (b) all facts known to the
director respecting the subject matter of the transaction that an
ordinarily prudent person would reasonably believe to be material to a
judgment about whether or not to proceed with the transaction.
(5) "Time of commitment" respecting a transaction means the time
when the transaction ((is consummated)) becomes effective or, if made
pursuant to contract, the time when the corporation, or its subsidiary
or the entity in which it has a controlling interest, becomes
contractually obligated so that its unilateral withdrawal from the
transaction would entail significant loss, liability, or other damage.
Sec. 31 RCW 23B.10.020 and 2003 c 35 s 3 are each amended to read
as follows:
Unless the articles of incorporation provide otherwise, a
corporation's board of directors may adopt one or more amendments to
the corporation's articles of incorporation without shareholder
((action)) approval:
(1) If the corporation has only one class of shares outstanding, to
provide, change, or eliminate any provision with respect to the par
value of any class of shares;
(2) To delete the names and addresses of the initial directors;
(3) To delete the name and address of the initial registered agent
or registered office, if a statement of change is on file with the
secretary of state;
(4) If the corporation has only one class of shares outstanding,
solely to:
(a) Effect a forward split of, or change the number of authorized
shares of that class in proportion to a forward split of, or stock
dividend in, the corporation's outstanding shares; or
(b) Effect a reverse split of the corporation's outstanding shares
and the number of authorized shares of that class in the same
proportions;
(5) To change the corporate name; or
(6) To make any other change expressly permitted by this title to
be made without shareholder ((action)) approval.
Sec. 32 RCW 23B.10.060 and 1989 c 165 s 125 are each amended to
read as follows:
A corporation amending its articles of incorporation shall deliver
to the secretary of state for filing articles of amendment setting
forth:
(1) The name of the corporation;
(2) The text of each amendment adopted;
(3) If an amendment provides for an exchange, reclassification, or
cancellation of issued shares, provisions for implementing the
amendment if not contained in the amendment itself;
(4) The date of each amendment's adoption;
(5) If an amendment was adopted by the incorporators or board of
directors without shareholder ((action)) approval, a statement to that
effect and that shareholder ((action)) approval was not required; and
(6) If shareholder ((action)) approval was required, a statement
that the amendment was duly approved by the shareholders in accordance
with the provisions of RCW 23B.10.030 and 23B.10.040.
Sec. 33 RCW 23B.10.070 and 1991 c 72 s 36 are each amended to
read as follows:
(1) Any officer of the corporation may restate its articles of
incorporation at any time.
(2) A restatement may include one or more amendments to the
articles of incorporation. If the restatement includes an amendment
not requiring shareholder approval, it must be adopted by the board of
directors. If the restatement includes an amendment requiring
shareholder approval, it must be adopted in accordance with RCW
23B.10.030.
(3) If the board of directors submits a restatement for shareholder
((action)) approval, the corporation shall notify each shareholder,
whether or not entitled to vote, of the proposed shareholders' meeting
in accordance with RCW 23B.07.050. The notice must also state that the
purpose, or one of the purposes, of the meeting is to consider the
proposed restatement and contain or be accompanied by a copy of the
restatement that identifies any amendment or other change it would make
in the articles of incorporation.
(4) A corporation restating its articles of incorporation shall
deliver to the secretary of state for filing articles of restatement
setting forth the name of the corporation and the text of the restated
articles of incorporation together with a certificate setting forth:
(a) If the restatement does not include an amendment to the
articles of incorporation, a statement to that effect;
(b) If the restatement contains an amendment to the articles of
incorporation not requiring shareholder approval, a statement that the
board of directors adopted the restatement and the date of such
adoption;
(c) If the restatement contains an amendment to the articles of
incorporation requiring shareholder approval, the information required
by RCW 23B.10.060; and
(d) Both the articles of restatement and the certificate must be
executed.
(5) Duly adopted restated articles of incorporation supersede the
original articles of incorporation and all amendments to them.
(6) The secretary of state may certify restated articles of
incorporation, as the articles of incorporation currently in effect,
without including the certificate information required by subsection
(4) of this section.
Sec. 34 RCW 23B.10.080 and 1989 c 165 s 127 are each amended to
read as follows:
(1) A corporation's articles of incorporation may be amended
without ((action)) approval by the board of directors or shareholders
to carry out a plan of reorganization ordered or decreed by a court of
competent jurisdiction under federal statute if the articles of
incorporation after amendment contain only provisions required or
permitted by RCW 23B.02.020.
(2) The individual or individuals designated by the court shall
deliver to the secretary of state for filing articles of amendment
setting forth:
(a) The name of the corporation;
(b) The text of each amendment approved by the court;
(c) The date of the court's order or decree approving the articles
of amendment;
(d) The title of the reorganization proceeding in which the order
or decree was entered; and
(e) A statement that the court had jurisdiction of the proceeding
under federal statute.
(3) Shareholders of a corporation undergoing reorganization do not
have dissenters' rights except as and to the extent provided in the
reorganization plan.
(4) This section does not apply after entry of a final decree in
the reorganization proceeding even though the court retains
jurisdiction of the proceeding for limited purposes unrelated to
consummation of the reorganization plan.
Sec. 35 RCW 23B.10.200 and 2007 c 467 s 7 are each amended to
read as follows:
(1) A corporation's board of directors may amend or repeal the
corporation's bylaws, or adopt new bylaws, unless:
(a) The articles of incorporation, RCW 23B.10.205, or, if
applicable, RCW ((23B.07.035)) 23B.10.210, or any other provision of
this title reserve this power exclusively to the shareholders in whole
or part; or
(b) The shareholders, in amending or repealing a particular bylaw,
provide expressly that the board of directors may not amend or repeal
that bylaw.
(2) A corporation's shareholders may amend or repeal the
corporation's bylaws, or adopt new bylaws, even though the bylaws may
also be amended or repealed, or new bylaws may also be adopted, by its
board of directors.
Sec. 36 RCW 23B.10.205 and 2007 c 467 s 5 are each amended to
read as follows:
(1) Unless the articles of incorporation (((a))) specifically
prohibit the adoption of a bylaw pursuant to this section, (((b)))
alter the vote specified in RCW 23B.07.280(2), or (((c))) allow for or
do not exclude cumulative voting, a public company may elect in its
bylaws to be governed in the election of directors as follows:
(((i))) (a) Each vote entitled to be cast may be voted for, voted
against, or withheld for one or more candidates up to that number of
candidates that is equal to the number of directors to be elected but
without cumulating the votes, or a shareholder may indicate an
abstention for one or more candidates;
(((ii))) (b) To be elected, a candidate must have received the
number, percentage, or level of votes specified in the bylaws; provided
that holders of shares entitled to vote in the election and
constituting a quorum are present at the meeting. Except in a
contested election as provided in (((c)(v))) (e) of this subsection, a
candidate who does not receive the number, percentage, or level of
votes specified in the bylaws but who was a director at the time of the
election shall continue to serve as a director for a term that shall
terminate on the date that is the earlier of (((A))) (i) the date
specified in the bylaw, but not longer than ninety days from the date
on which the voting results are determined pursuant to RCW
23B.07.035(2), or (((B))) (ii) the date on which an individual is
selected by the board of directors to fill the office held by such
director, which selection shall be deemed to constitute the filling of
a vacancy by the board to which RCW 23B.08.100 applies;
(((iii))) (c) A bylaw adopted pursuant to this section may provide
that votes cast against and/or withheld as to a candidate are to be
taken into account in determining whether the number, percentage, or
level of votes required for election has been received. Unless the
bylaw specifies otherwise, only votes cast are to be taken into account
and a ballot marked "withheld" in respect to a share is deemed to be a
vote cast. Unless the bylaws specify otherwise, shares otherwise
present at the meeting but for which there is an abstention or as to
which no authority or direction to vote in the election is given or
specified, are not deemed to be votes cast in the election;
(((iv))) (d) The board of directors may select any qualified
individual to fill the office held by a director who did not receive
the specified vote for election referenced in (((c)(ii))) (b) of this
subsection; and
(((v))) (e) Unless the bylaw specifies otherwise, a bylaw adopted
pursuant to this subsection (1) shall not apply to an election of
directors by a voting group if (((A))) (i) at the expiration of the
time fixed under a provision requiring advance notification of director
candidates, or (((B))) (ii) absent such a provision, at a time fixed by
the board of directors which is not more than fourteen days before
notice is given of the meeting at which the election is to occur, there
are more candidates for election by the voting group than the number of
directors to be elected, one or more of whom are properly proposed by
shareholders. An individual shall not be considered a candidate for
purposes of this subsection (1)(((c)(v))) (e) if the board of directors
determines before the notice of meeting is given that such individual's
candidacy does not create a bona fide election contest.
(2) A bylaw containing an election to be governed by this section
may be repealed or amended:
(a) If originally adopted by the shareholders, only by the
shareholders, unless the bylaw otherwise provides; or
(b) If adopted by the board of directors, by the board of directors
or the shareholders.
Sec. 37 RCW 23B.10.210 and 1989 c 165 s 130 are each amended to
read as follows:
(1) A bylaw that fixes a greater quorum or voting requirement for
the board of directors may be amended or repealed:
(a) If originally adopted by the shareholders, only by the
shareholders; or
(b) If originally adopted by the board of directors, either by the
shareholders or by the board of directors.
(2) A bylaw adopted or amended by the shareholders that fixes a
greater quorum or voting requirement for the board of directors may
provide that it may be amended or repealed only by a specified vote of
either the shareholders or the board of directors.
(3) If the corporation is a public company, ((action)) approval by
the board of directors under subsection (1)(b) of this section to adopt
or amend a bylaw that changes the quorum or voting requirement for the
board of directors must meet the quorum requirement and be ((adopted))
approved by the vote required ((to take action)) for approval under the
quorum and voting requirement then in effect.
(4) If the corporation is not a public company, ((action)) approval
by the board of directors under subsection (1)(b) of this section to
adopt or amend a bylaw that changes the quorum or voting requirement
for the board of directors must meet the same quorum requirement and be
((adopted)) approved by the same vote required ((to take action)) for
approval under the quorum and voting requirement then in effect or
proposed to be adopted, whichever is greater.
Sec. 38 RCW 23B.11.030 and 2003 c 35 s 6 are each amended to read
as follows:
(1) After adopting a plan of merger or share exchange, the board of
directors of each corporation party to the merger, and the board of
directors of the corporation whose shares will be acquired in the share
exchange, shall submit the plan of merger, except as provided in
subsection (7) of this section, or share exchange for approval by its
shareholders.
(2) For a plan of merger or share exchange to be approved:
(a) The board of directors must recommend the plan of merger or
share exchange to the shareholders, unless the board of directors
determines that because of conflict of interest or other special
circumstances it should make no recommendation and communicates the
basis for its determination to the shareholders with the plan; and
(b) The shareholders entitled to vote must approve the plan, except
as provided in subsection (7) of this section.
(3) The board of directors may condition its submission of the
proposed plan of merger or share exchange on any basis, including the
affirmative vote of holders of a specified percentage of shares held by
any group of shareholders not otherwise entitled under this title or
the articles of incorporation to vote as a separate voting group on the
proposed plan of merger or share exchange.
(4) The corporation shall notify each shareholder, whether or not
entitled to vote, of the proposed shareholders' meeting in accordance
with RCW 23B.07.050. The notice must also state that the purpose, or
one of the purposes, of the meeting is to consider the plan of merger
or share exchange and must contain or be accompanied by a copy or
summary of the plan.
(5) In addition to any other voting conditions imposed by the board
of directors under subsection (3) of this section, the plan of merger
((to be authorized)) must be approved by two-thirds of the voting group
comprising all the votes entitled to be cast on the plan, and of each
other voting group entitled under RCW 23B.11.035 or the articles of
incorporation to vote separately on the plan, unless shareholder
((action)) approval is not required under subsection (7) of this
section. The articles of incorporation may require a greater or lesser
vote than that provided in this subsection, or a greater or lesser vote
by separate voting groups, so long as the required vote is not less
than a majority of all the votes entitled to be cast on the plan of
merger and of each other voting group entitled to vote separately on
the plan. Separate voting by additional voting groups is required on
a plan of merger under the circumstances described in RCW 23B.11.035.
(6) In addition to any other voting conditions imposed by the board
of directors under subsection (3) of this section, the plan of share
exchange ((to be authorized)) must be approved by two-thirds of the
voting group comprising all the votes entitled to be cast on the plan,
and of each other voting group entitled under RCW 23B.11.035 or the
articles of incorporation to vote separately on the plan. The articles
of incorporation may require a greater or lesser vote than that
provided in this subsection, or a greater or lesser vote by separate
voting groups, so long as the required vote is not less than a majority
of all the votes entitled to be cast on the plan of share exchange and
of each other voting group entitled to vote separately on the plan.
Separate voting by additional voting groups is required on a plan of
share exchange under the circumstances described in RCW 23B.11.035.
(7) ((Action)) Approval by the shareholders of the surviving
corporation on a plan of merger is not required if:
(a) The articles of incorporation of the surviving corporation will
not differ, except for amendments enumerated in RCW 23B.10.020, from
its articles of incorporation before the merger;
(b) Each shareholder of the surviving corporation whose shares were
outstanding immediately before the effective date of the merger will
hold the same number of shares, with identical designations,
preferences, limitations, and relative rights, immediately after the
merger;
(c) The number of voting shares outstanding immediately after the
merger, plus the number of voting shares issuable as a result of the
merger, either by the conversion of securities issued pursuant to the
merger or the exercise of rights and warrants issued pursuant to the
merger, will not exceed the total number of voting shares of the
surviving corporation authorized by its articles of incorporation
immediately before the merger; and
(d) The number of participating shares outstanding immediately
after the merger, plus the number of participating shares issuable as
a result of the merger, either by the conversion of securities issued
pursuant to the merger or the exercise of rights and warrants issued
pursuant to the merger, will not exceed the total number of
participating shares authorized by its articles of incorporation
immediately before the merger.
(8) As used in subsection (7) of this section:
(a) "Participating shares" means shares that entitle their holders
to participate without limitation in distributions.
(b) "Voting shares" means shares that entitle their holders to vote
unconditionally in elections of directors.
(9) After a merger or share exchange is ((authorized)) approved,
and at any time before articles of merger or share exchange are filed,
the planned merger or share exchange may be abandoned, subject to any
contractual rights, without further shareholder ((action)) approval, in
accordance with the procedure set forth in the plan of merger or share
exchange or, if none is set forth, in the manner determined by the
board of directors.
Sec. 39 RCW 23B.11.040 and 2002 c 297 s 34 are each amended to
read as follows:
(1) A parent corporation owning at least ninety percent of the
outstanding shares of each class of a subsidiary corporation may merge
the subsidiary into itself without approval of the shareholders of the
parent or subsidiary.
(2) The board of directors of the parent shall ((adopt)) approve a
plan of merger that sets forth:
(a) The names of the parent and subsidiary; and
(b) The manner and basis of converting the shares of the subsidiary
into shares, obligations, or other securities of the parent or any
other corporation or into cash or other property in whole or part.
(3) Within ten days after the corporate action ((is taken)) becomes
effective, the parent shall deliver a notice to each shareholder of the
subsidiary, which notice shall include a copy of the plan of merger.
(4) Articles of merger under this section may not contain
amendments to the articles of incorporation of the parent corporation,
except for amendments enumerated in RCW 23B.10.020.
Sec. 40 RCW
23B.12.020 and 2003 c 35 s 8 are each amended to read
as follows:
(1) A corporation may sell, lease, exchange, or otherwise dispose
of all, or substantially all, of its property, otherwise than in the
usual and regular course of business, on the terms and conditions and
for the consideration determined by the corporation's board of
directors, if the board of directors proposes and its shareholders
approve the proposed transaction.
(2) For a transaction to be ((authorized)) approved:
(a) The board of directors must recommend the proposed transaction
to the shareholders unless the board of directors determines that
because of conflict of interest or other special circumstances it
should make no recommendation and communicates the basis for its
determination to the shareholders with the submission of the proposed
transaction; and
(b) The shareholders entitled to vote must approve the transaction.
(3) The board of directors may condition its submission of the
proposed transaction on any basis, including the affirmative vote of
holders of a specified percentage of shares held by any group of
shareholders not otherwise entitled under this title or the articles of
incorporation to vote as a separate voting group on the proposed
transaction.
(4) The corporation shall notify each shareholder, whether or not
entitled to vote, of the proposed shareholders' meeting in accordance
with RCW 23B.07.050. The notice must also state that the purpose, or
one of the purposes, of the meeting is to consider the sale, lease,
exchange, or other disposition of all, or substantially all, the
property of the corporation and contain or be accompanied by a
description of the transaction.
(5) In addition to any other voting conditions imposed by the board
of directors under subsection (3) of this section, the transaction ((to
be authorized)) must be approved by two-thirds of the voting group
comprising all the votes entitled to be cast on the transaction, and of
each other voting group entitled under the articles of incorporation to
vote separately on the transaction. The articles of incorporation may
require a greater or lesser vote than provided in this subsection, or
a greater or lesser vote by any separate voting groups provided for in
the articles of incorporation, so long as the required vote is not less
than a majority of all the votes entitled to be cast on the transaction
and of each other voting group entitled to vote separately on the
transaction.
(6) After a sale, lease, exchange, or other disposition of property
is ((authorized)) approved, the transaction may be abandoned, subject
to any contractual rights, without further shareholder ((action))
approval, in a manner determined by the board of directors.
(7) A transaction that constitutes a distribution is governed by
RCW 23B.06.400 and not by this section.
Sec. 41 RCW 23B.13.020 and 2003 c 35 s 9 are each amended to read
as follows:
(1) A shareholder is entitled to dissent from, and obtain payment
of the fair value of the shareholder's shares in the event of, any of
the following corporate actions:
(a) ((Consummation of)) A plan of merger, which has become
effective, to which the corporation is a party (i) if shareholder
approval ((is)) was required for the merger by RCW 23B.11.030,
23B.11.080, or the articles of incorporation, and the shareholder
((is)) was entitled to vote on the merger, or (ii) if the corporation
((is)) was a subsidiary that ((is)) has been merged with its parent
under RCW 23B.11.040;
(b) ((Consummation of)) A plan of share exchange, which has become
effective, to which the corporation is a party as the corporation whose
shares ((will be)) have been acquired, if the shareholder ((is)) was
entitled to vote on the plan;
(c) ((Consummation of)) A sale or exchange, which has become
effective, of all, or substantially all, of the property of the
corporation other than in the usual and regular course of business, if
the shareholder ((is)) was entitled to vote on the sale or exchange,
including a sale in dissolution, but not including a sale pursuant to
court order or a sale for cash pursuant to a plan by which all or
substantially all of the net proceeds of the sale will be distributed
to the shareholders within one year after the date of sale;
(d) An amendment of the articles of incorporation, whether or not
the shareholder was entitled to vote on the amendment, if the amendment
effects a redemption or cancellation of all of the shareholder's shares
in exchange for cash or other consideration other than shares of the
corporation; or
(e) Any corporate action ((taken)) approved pursuant to a
shareholder vote to the extent the articles of incorporation, bylaws,
or a resolution of the board of directors provides that voting or
nonvoting shareholders are entitled to dissent and obtain payment for
their shares.
(2) A shareholder entitled to dissent and obtain payment for the
shareholder's shares under this chapter may not challenge the corporate
action creating the shareholder's entitlement unless the action fails
to comply with the procedural requirements imposed by this title, RCW
25.10.900 through 25.10.955, the articles of incorporation, or the
bylaws, or is fraudulent with respect to the shareholder or the
corporation.
(3) The right of a dissenting shareholder to obtain payment of the
fair value of the shareholder's shares shall terminate upon the
occurrence of any one of the following events:
(a) The proposed corporate action is abandoned or rescinded;
(b) A court having jurisdiction permanently enjoins or sets aside
the corporate action; or
(c) The shareholder's demand for payment is withdrawn with the
written consent of the corporation.
Sec. 42 RCW 23B.13.200 and 2002 c 297 s 36 are each amended to
read as follows:
(1) If proposed corporate action creating dissenters' rights under
RCW 23B.13.020 is submitted ((to)) for approval by a vote at a
shareholders' meeting, the meeting notice must state that shareholders
are or may be entitled to assert dissenters' rights under this chapter
and be accompanied by a copy of this chapter.
(2) If corporate action creating dissenters' rights under RCW
23B.13.020 is ((taken)) submitted for approval without a vote of
shareholders((, the corporation, within ten days after the effective
date of such corporate action, shall deliver a notice to all
shareholders entitled to assert dissenters' rights that the action was
taken and send them the notice described in RCW 23B.13.220)) in
accordance with RCW 23B.07.040, the shareholder consent described in
RCW 23B.07.040(1)(b) and the notice described in RCW 23B.07.040(3)(a)
must include a statement that shareholders are or may be entitled to
assert dissenters' rights under this chapter and be accompanied by a
copy of this chapter.
Sec. 43 RCW 23B.13.210 and 2002 c 297 s 37 are each amended to
read as follows:
(1) If proposed corporate action creating dissenters' rights under
RCW 23B.13.020 is submitted to a vote at a shareholders' meeting, a
shareholder who wishes to assert dissenters' rights must (a) deliver to
the corporation before the vote is taken notice of the shareholder's
intent to demand payment for the shareholder's shares if the proposed
corporate action is effected, and (b) not vote such shares in favor of
the proposed corporate action.
(2) If proposed corporate action creating dissenters' rights under
RCW 23B.13.020 is submitted for approval without a vote of shareholders
in accordance with RCW 23B.07.040, a shareholder who wishes to assert
dissenters' rights must not execute the consent or otherwise vote such
shares in favor of the proposed corporate action.
(3) A shareholder who does not satisfy the requirements of
subsection (1) or (2) of this section is not entitled to payment for
the shareholder's shares under this chapter.
Sec. 44 RCW 23B.13.220 and 2002 c 297 s 38 are each amended to
read as follows:
(1) If proposed corporate action creating dissenters' rights under
RCW 23B.13.020 is ((authorized)) approved at a shareholders' meeting,
the corporation shall within ten days after the effective date of the
corporate action deliver ((a notice)) to all shareholders who satisfied
the requirements of RCW 23B.13.210(1) a notice in compliance with
subsection (3) of this section.
(2) ((The)) If proposed corporate action creating dissenters'
rights under RCW 23B.13.020 is approved without a vote of shareholders
in accordance with RCW 23B.07.040, the notice delivered pursuant to RCW
23B.07.040(3)(b) to shareholders who satisfied the requirements of RCW
23B.13.210(2) shall comply with subsection (3) of this section.
(3) Any notice under subsection (1) or (2) of this section must
((be sent within ten days after the effective date of the corporate
action, and must)):
(a) State where the payment demand must be sent and where and when
certificates for certificated shares must be deposited;
(b) Inform holders of uncertificated shares to what extent transfer
of the shares will be restricted after the payment demand is received;
(c) Supply a form for demanding payment that includes the date of
the first announcement to news media or to shareholders of the terms of
the proposed corporate action and requires that the person asserting
dissenters' rights certify whether or not the person acquired
beneficial ownership of the shares before that date;
(d) Set a date by which the corporation must receive the payment
demand, which date may not be fewer than thirty nor more than sixty
days after the date the notice in subsection (1) or (2) of this section
is delivered; and
(e) Be accompanied by a copy of this chapter.
Sec. 45 RCW 23B.13.240 and 1989 c 165 s 147 are each amended to
read as follows:
(1) The corporation may restrict the transfer of uncertificated
shares from the date the demand for ((their)) payment under RCW
23B.13.230 is received until the proposed corporate action is effected
or the restriction is released under RCW 23B.13.260.
(2) The person for whom dissenters' rights are asserted as to
uncertificated shares retains all other rights of a shareholder until
the effective date of the proposed corporate action.
Sec. 46 RCW 23B.13.260 and 1989 c 165 s 149 are each amended to
read as follows:
(1) If the corporation does not effect the proposed corporate
action within sixty days after the date set for demanding payment and
depositing share certificates, the corporation shall return the
deposited certificates and release any transfer restrictions imposed on
uncertificated shares.
(2) If after returning deposited certificates and releasing
transfer restrictions, the corporation wishes to ((undertake)) effect
the proposed corporate action, it must send a new dissenters' notice
under RCW 23B.13.220 and repeat the payment demand procedure.
Sec.47 RCW 23B.13.270 and 1989 c 165 s 150 are each amended to
read as follows:
(1) A corporation may elect to withhold payment required by RCW
23B.13.250 from a dissenter unless the dissenter was the beneficial
owner of the shares before the date set forth in the dissenters' notice
as the date of the first announcement to news media or to shareholders
of the terms of the proposed corporate action.
(2) To the extent the corporation elects to withhold payment under
subsection (1) of this section, after ((taking)) the effective date of
the proposed corporate action, it shall estimate the fair value of the
shares, plus accrued interest, and shall pay this amount to each
dissenter who agrees to accept it in full satisfaction of the
dissenter's demand. The corporation shall send with its offer an
explanation of how it estimated the fair value of the shares, an
explanation of how the interest was calculated, and a statement of the
dissenter's right to demand payment under RCW 23B.13.280.
Sec. 48 RCW 23B.13.280 and 2002 c 297 s 40 are each amended to
read as follows:
(1) A dissenter may deliver a notice to the corporation informing
the corporation of the dissenter's own estimate of the fair value of
the dissenter's shares and amount of interest due, and demand payment
of the dissenter's estimate, less any payment under RCW 23B.13.250, or
reject the corporation's offer under RCW 23B.13.270 and demand payment
of the dissenter's estimate of the fair value of the dissenter's shares
and interest due, if:
(a) The dissenter believes that the amount paid under RCW
23B.13.250 or offered under RCW 23B.13.270 is less than the fair value
of the dissenter's shares or that the interest due is incorrectly
calculated;
(b) The corporation fails to make payment under RCW 23B.13.250
within sixty days after the date set for demanding payment; or
(c) The corporation does not effect the proposed corporate action
and does not return the deposited certificates or release the transfer
restrictions imposed on uncertificated shares within sixty days after
the date set for demanding payment.
(2) A dissenter waives the right to demand payment under this
section unless the dissenter notifies the corporation of the
dissenter's demand under subsection (1) of this section within thirty
days after the corporation made or offered payment for the dissenter's
shares.
Sec. 49 RCW 23B.14.010 and 2006 c 52 s 5 are each amended to read
as follows:
(1) A majority of the initial directors, or, if initial directors
were not named in the articles of incorporation and have not been
elected, a majority of the incorporators, of a corporation that has not
issued shares may ((authorize)) approve dissolution of the corporation.
(2) Unless prohibited by the articles of incorporation, a majority
of the board of directors may ((authorize)) approve dissolution of the
corporation without approval by the shareholders, upon a finding by the
board of directors that:
(a) The corporation is not able to pay its liabilities as they
become due in the usual course of business, or the corporation's assets
are less than the sum of its total liabilities; and
(b) Ten or more days have elapsed since the corporation gave notice
to all shareholders, whether or not they would otherwise be entitled to
vote under RCW 23B.14.020, of the intent of the board of directors to
((authorize)) approve dissolution under this subsection.
Sec. 50 RCW 23B.14.020 and 2006 c 52 s 6 are each amended to read
as follows:
(1) A corporation's board of directors may propose dissolution for
submission to the shareholders.
(2) For a proposal to dissolve to be ((adopted)) approved:
(a) The board of directors must recommend dissolution to the
shareholders unless the board of directors determines that because of
conflict of interest or other special circumstances it should make no
recommendation and communicates the basis for its determination to the
shareholders; and
(b) The shareholders entitled to vote must approve the proposal to
dissolve as provided in subsection (5) of this section.
(3) The board of directors may condition its submission of the
proposal for dissolution on any basis, including the affirmative vote
of holders of a specified percentage of shares held by any group of
shareholders not otherwise entitled under this title or the articles of
incorporation to vote as a separate voting group on the proposed
dissolution.
(4) The corporation shall notify each shareholder, whether or not
entitled to vote, of the proposed dissolution either (a) by giving
notice of a shareholders' meeting in accordance with RCW 23B.07.050 and
stating that the purpose or one of the purposes of the meeting is to
consider dissolving the corporation, or (b) in accordance with the
requirements of RCW 23B.07.040 for ((taking action on the proposal))
approving the proposed dissolution without a meeting.
(5) In addition to any other voting conditions imposed by the board
of directors under subsection (3) of this section, the ((proposal to
dissolve)) proposed dissolution must be approved by two-thirds of the
voting group comprising all the votes entitled to be cast on the
((proposal)) proposed dissolution, and of each other voting group
entitled under the articles of incorporation to vote separately on the
((proposal)) proposed dissolution. The articles of incorporation may
require a greater or lesser vote than provided in this subsection, or
a greater or lesser vote by any separate voting groups provided for in
the articles of incorporation, so long as the required vote is not less
than a majority of all the votes entitled to be cast on the
((proposal)) proposed dissolution and of each other voting group
entitled to vote separately on the ((proposal)) proposed dissolution.
Sec. 51 RCW 23B.14.030 and 2006 c 52 s 7 are each amended to read
as follows:
(1) At any time after dissolution is authorized under RCW
23B.14.010 or 23B.14.020, the corporation may dissolve by delivering to
the secretary of state for filing:
(a) A copy of a revenue clearance certificate issued pursuant to
RCW 82.32.260; and
(b) Articles of dissolution setting forth:
(i) The name of the corporation;
(ii) The date dissolution was ((authorized)) approved; and
(iii) A statement that dissolution was duly ((authorized)) approved
by the initial directors, the incorporators, or the board of directors
in accordance with RCW 23B.14.010, or was duly proposed by the board of
directors and approved by the shareholders in accordance with RCW
23B.14.020.
(2) A corporation is dissolved upon the effective date of its
articles of dissolution.
(3) A dissolved corporation shall, within thirty days after the
effective date of its articles of dissolution, publish notice of its
dissolution and request that persons with claims against the dissolved
corporation present them in accordance with the notice. The notice
must be published once a week for three consecutive weeks in a
newspaper of general circulation in the county where the dissolved
corporation's principal office (or, if none in this state, its
registered office) is or was last located. The notice must also
describe the information that must be included in a claim, provide a
mailing address where a claim may be sent, and state that claims
against the dissolved corporation may be barred in accordance with the
provisions of this chapter if not timely asserted. A dissolved
corporation's failure to publish notice in accordance with this
subsection does not affect the validity or the effective date of its
dissolution.
(4) For purposes of this chapter, "dissolved corporation" means a
corporation whose dissolution has been ((authorized)) approved in
accordance with RCW 23B.14.010 or 23B.14.020 and whose articles of
dissolution have become effective, and includes any trust or other
successor entity to which the remaining assets of such a corporation
are transferred subject to its liabilities for purposes of liquidation
in accordance with RCW 23B.14.050.
Sec. 52 RCW 23B.14.040 and 1989 c 165 s 157 are each amended to
read as follows:
(1) A corporation may revoke its dissolution within one hundred
twenty days of its effective date.
(2) Revocation of dissolution must be ((authorized)) approved in
the same manner as the dissolution was ((authorized)) approved unless
that ((authorization)) approval permitted revocation upon approval by
((action of)) the board of directors alone, in which event the board of
directors may revoke the dissolution without shareholder ((action))
approval.
(3) After the revocation of dissolution is ((authorized)) approved,
the corporation may revoke the dissolution by delivering to the
secretary of state for filing articles of revocation of dissolution,
together with a copy of its articles of dissolution, that set forth:
(a) The name of the corporation and a statement that such name
satisfies the requirements of RCW 23B.04.010; if the name is not
available, the corporation must file articles of amendment changing its
name with the articles of revocation of dissolution;
(b) The effective date of the dissolution that was revoked;
(c) The date that the revocation of dissolution was ((authorized))
approved;
(d) If the corporation's board of directors, or incorporators,
revoked the dissolution, a statement to that effect;
(e) If the corporation's board of directors revoked a dissolution
authorized by the shareholders, a statement that revocation was
permitted by action by the board of directors alone pursuant to that
authorization; and
(f) If shareholder ((action)) approval was required to revoke the
dissolution, a statement that revocation of the dissolution was duly
approved by the shareholders in accordance with RCW 23B.14.040(2) and
23B.14.020.
(4) Revocation of dissolution is effective upon the effective date
of the articles of revocation of dissolution.
(5) When the revocation of dissolution is effective, it relates
back to and takes effect as of the effective date of the dissolution
and the corporation resumes carrying on its business as if dissolution
had never occurred.
Sec. 53 RCW 23B.14.050 and 2006 c 52 s 8 are each amended to read
as follows:
(1) A dissolved corporation continues its corporate existence but
may not carry on any business except that appropriate to wind up and
liquidate its business and affairs, including:
(a) Collecting its assets;
(b) Disposing of its properties that will be applied toward
satisfaction or making reasonable provision for satisfaction of its
liabilities or will otherwise not be distributed in kind to its
shareholders, but in any case subject to applicable liens and security
interests as well as any applicable contractual restrictions on the
disposition of its properties;
(c) Satisfying or making reasonable provision for satisfying its
liabilities, in accordance with their priorities as established by law,
and on a pro rata basis within each class of liabilities;
(d) Subject to the limitations imposed by RCW 23B.06.400,
distributing its remaining property among its shareholders according to
their interests; and
(e) Doing every other act necessary to wind up and liquidate its
business and affairs.
(2) Except as otherwise provided in this chapter, dissolution of a
corporation does not:
(a) Transfer title to the corporation's property;
(b) Prevent transfer of its shares or securities, although the
authorization to dissolve may provide for closing the corporation's
share transfer records;
(c) Subject its directors or officers to standards of conduct
different from those prescribed in chapter 23B.08 RCW;
(d) Change quorum or voting requirements for its board of directors
or shareholders; change provisions for selection, resignation, or
removal of its directors or officers or both; or change provisions for
amending its bylaws;
(e) Prevent commencement of a proceeding by or against the
corporation in its corporate name;
(f) Abate or suspend a proceeding pending by or against the
corporation on the effective date of dissolution; or
(g) Terminate the authority of the registered agent of the
corporation.
(3) A dissolved corporation's board of directors may make a
determination that reasonable provision for the satisfaction of any
liability, whether arising in tort or by contract, statute, or
otherwise, and whether matured or unmatured, contingent, or
conditional, has been made by means of a purchase of insurance
coverage, provision of security therefor, contractual assumption
thereof by a solvent person, or any other means, that the board of
directors determines is reasonably calculated to provide for
satisfaction of the reasonably estimated amount of such liability.
Upon
making such a determination, the board of directors shall, for
purposes of determining whether a subsequent distribution to
shareholders is prohibited under RCW 23B.06.400(2), be entitled to
treat such liability as fully satisfied by the assets used or committed
in order to make such provision. In making determinations under RCW
23B.06.400(2), the board of directors of a dissolved corporation may
also disregard, and make no provision for the satisfaction of, any
liabilities that are barred in accordance with RCW 23B.14.060(2), or
that may exceed any provision for their satisfaction ordered by a
superior court pursuant to RCW 23B.14.065, or that the board of
directors does not consider, based on the facts known to it, reasonably
likely to arise prior to expiration of the survival period specified in
RCW 23B.14.340.
(4) The board of directors of a dissolved corporation may at any
time petition to have the dissolution continued under court supervision
in accordance with RCW 23B.14.300, or, upon a finding that the
corporation is not able to pay its liabilities as they become due in
the usual course of business or that its assets are less than the sum
of its total liabilities, may dedicate the corporation's assets to the
repayment of its creditors by making an assignment for the benefit of
creditors in accordance with chapter 7.08 RCW or obtaining the
appointment of a general receiver in accordance with chapter 7.60 RCW.
The assumption of control over the corporation's assets by a court, an
assignee for the benefit of creditors, or a general receiver relieves
the directors of any further duties with respect to the liquidation of
the corporation's assets or the application of any assets or proceeds
toward satisfaction of its liabilities.
(5) Corporate actions ((and decisions)) to be ((taken)) approved by
a corporation that has been dissolved under RCW 23B.14.030 or
23B.14.210, which are within the scope of activities permitted in this
chapter, may be ((taken)) approved by the corporation's board of
directors and, if required, by its shareholders, membership in both
groups determined as of the effective date of the dissolution. If
vacancies in the board of directors occur after the effective date of
dissolution, the shareholders, or the remaining directors, even if less
than a quorum of the board, may fill the vacancies. A special meeting
of the shareholders for purposes of ((authorizing)) approving any
corporate action required or permitted to be ((authorized)) approved by
shareholders, or for purposes of electing directors, may be called by
any person who was an officer, director, or shareholder of the
corporation at the effective date of the dissolution.
Sec. 54 RCW 23B.16.010 and 2002 c 297 s 45 are each amended to
read as follows:
(1) A corporation shall keep as permanent records minutes of all
meetings of its shareholders and board of directors, a record of all
corporate actions ((taken)) approved by the shareholders or board of
directors by executed consent without a meeting, and a record of all
corporate actions ((taken)) approved by a committee of the board of
directors exercising the authority of the board of directors on behalf
of the corporation.
(2) A corporation shall maintain appropriate accounting records.
(3) A corporation or its agent shall maintain a record of its
shareholders, in a form that permits preparation of a list of the names
and addresses of all shareholders, in alphabetical order by class of
shares showing the number and class of shares held by each.
(4) A corporation shall maintain its records in written form or in
another form capable of conversion into written form within a
reasonable time.
(5) A corporation shall keep a copy of the following records at its
principal office:
(a) Its articles or restated articles of incorporation and all
amendments to them currently in effect;
(b) Its bylaws or restated bylaws and all amendments to them
currently in effect;
(c) The minutes of all shareholders' meetings, and records of all
((action taken)) corporate actions approved by shareholders without a
meeting, for the past three years;
(d) The financial statements described in RCW 23B.16.200(1), for
the past three years;
(e) All communications in the form of a record to shareholders
generally within the past three years;
(f) A list of the names and business addresses of its current
directors and officers; and
(g) Its initial report or most recent annual report delivered to
the secretary of state under RCW 23B.16.220.
Sec. 55 RCW
23B.16.020 and 2002 c 297 s 46 are each amended to
read as follows:
(1) A shareholder of a corporation is entitled to inspect and copy,
during regular business hours at the corporation's principal office,
any of the records of the corporation described in RCW 23B.16.010(5) if
the shareholder gives the corporation notice of the shareholder's
demand at least five business days before the date on which the
shareholder wishes to inspect and copy.
(2) A shareholder of a corporation is entitled to inspect and copy,
during regular business hours at a reasonable location specified by the
corporation, any of the following records of the corporation if the
shareholder meets the requirements of subsection (3) of this section
and gives the corporation notice of the shareholder's demand at least
five business days before the date on which the shareholder wishes to
inspect and copy:
(a) Excerpts from minutes of any meeting of the board of directors,
((records of any action)) or of any meeting of a committee of the board
of directors while exercising the authority of the board of directors,
minutes of any meeting of the shareholders, and records of ((action
taken)) corporate actions approved by the shareholders or board of
directors or a committee thereof without a meeting, to the extent not
subject to inspection under subsection (1) of this section;
(b) Accounting records of the corporation; and
(c) The record of shareholders.
(3) A shareholder may inspect and copy the records described in
subsection (2) of this section only if:
(a) The shareholder's demand is made in good faith and for a proper
purpose;
(b) The shareholder describes with reasonable particularity the
shareholder's purpose and the records the shareholder desires to
inspect; and
(c) The records are directly connected with the shareholder's
purpose.
(4) The right of inspection granted by this section may not be
abolished or limited by a corporation's articles of incorporation or
bylaws.
(5) This section does not affect:
(a) The right of a shareholder to inspect records under RCW
23B.07.200 or, if the shareholder is in litigation with the
corporation, to the same extent as any other litigant; or
(b) The power of a court, independently of this title, to compel
the production of corporate records for examination.
(6) For purposes of this section, "shareholder" includes a
beneficial owner whose shares are held in a voting trust or by a
nominee on the beneficial owner's behalf.
Sec. 56 RCW 23B.19.040 and 2007 c 45 s 1 are each amended to read
as follows:
(1)(a) Notwithstanding anything to the contrary contained in this
title, a target corporation shall not for a period of five years
following the acquiring person's share acquisition time engage in a
significant business transaction unless:
(i) It is exempted by RCW 23B.19.030;
(ii) The significant business transaction or the purchase of shares
made by the acquiring person is approved prior to the acquiring
person's share acquisition time by a majority of the members of the
board of directors of the target corporation; or
(iii) At or subsequent to the acquiring person's share acquisition
time, such significant business transaction is approved by a majority
of the members of the board of directors of the target corporation and
((authorized)) approved at an annual or special meeting of
shareholders, and not by written consent, by the affirmative vote of at
least two-thirds of the outstanding voting shares, except shares
beneficially owned by or under the voting control of the acquiring
person.
(b) If a good faith proposal for a significant business transaction
is made in writing to the board of directors of the target corporation
prior to the significant business transaction or prior to the share
acquisition time, the board of directors shall respond in writing,
within thirty days or such shorter period, if any, as may be required
by the exchange act setting forth its reasons for its decision
regarding the proposal. If a good faith proposal to purchase shares is
made in writing to the board of directors of the target corporation,
the board of directors, unless it responds affirmatively in writing
within thirty days or a shorter period, if any, as may be required by
the exchange act shall be deemed to have disapproved such share
purchase.
(2) Except for a significant business transaction approved under
subsection (1) of this section or exempted by RCW 23B.19.030, in
addition to any other requirement, a target corporation shall not
engage at any time in any significant business transaction described in
RCW 23B.19.020(15) (a) or (e) with any acquiring person of such a
corporation other than a significant business transaction that either
meets all of the conditions of (a), (b), and (c) of this subsection or
meets the conditions of (d) of this subsection:
(a) The aggregate amount of the cash and the market value as of the
consummation date of consideration other than cash to be received per
share by holders of outstanding common shares of such a target
corporation in a significant business transaction is at least equal to
the higher of the following:
(i) The highest per share price paid by such an acquiring person at
a time when the person was the beneficial owner, directly or
indirectly, of five percent or more of the outstanding voting shares of
a target corporation, for any shares of common shares of the same class
or series acquired by it: (A) Within the five-year period immediately
prior to the announcement date with respect to a significant business
transaction; or (B) within the five-year period immediately prior to,
or in, the transaction in which the acquiring person became an
acquiring person, whichever is higher plus, in either case, interest
compounded annually from the earliest date on which the highest per
share acquisition price was paid through the consummation date at the
rate for one-year United States treasury obligations from time to time
in effect; less the aggregate amount of any cash dividends paid, and
the market value of any dividends paid other than in cash, per share of
common shares since the earliest date, up to the amount of the
interest; and
(ii) The market value per share of common shares on the
announcement date with respect to a significant business transaction or
on the date of the acquiring person's share acquisition time, whichever
is higher; plus interest compounded annually from such a date through
the consummation date at the rate for one-year United States treasury
obligations from time to time in effect; less the aggregate amount of
any cash dividends paid, and the market value of any dividends paid
other than in cash, per share of common shares since the date, up to
the amount of the interest.
(b) The aggregate amount of the cash and the market value as of the
consummation date of consideration other than cash to be received per
share by holders of outstanding shares of any class or series of
shares, other than common shares, of the target corporation is at least
equal to the highest of the following, whether or not the acquiring
person has previously acquired any shares of such a class or series of
shares:
(i) The highest per share price paid by an acquiring person at a
time when the person was the beneficial owner, directly or indirectly,
of five percent or more of the outstanding voting shares of a resident
domestic corporation, for any shares of the same class or series of
shares acquired by it: (A) Within the five-year period immediately
prior to the announcement date with respect to a significant business
transaction; or (B) within the five-year period immediately prior to,
or in, the transaction in which the acquiring person became an
acquiring person, whichever is higher; plus, in either case, interest
compounded annually from the earliest date on which the highest per
share acquisition price was paid through the consummation date at the
rate for one-year United States treasury obligations from time to time
in effect; less the aggregate amount of any cash dividends paid, and
the market value of any dividends paid other than in cash, per share of
the same class or series of shares since the earliest date, up to the
amount of the interest;
(ii) The highest preferential amount per share to which the holders
of shares of the same class or series of shares are entitled in the
event of any voluntary liquidation, dissolution, or winding up of the
target corporation, plus the aggregate amount of any dividends declared
or due as to which the holders are entitled prior to payment of
dividends on some other class or series of shares, unless the aggregate
amount of the dividends is included in the preferential amount; and
(iii) The market value per share of the same class or series of
shares on the announcement date with respect to a significant business
transaction or on the date of the acquiring person's share acquisition
time, whichever is higher; plus interest compounded annually from such
a date through the consummation date at the rate for one-year United
States treasury obligations from time to time in effect; less the
aggregate amount of any cash dividends paid and the market value of any
dividends paid other than in cash, per share of the same class or
series of shares since the date, up to the amount of the interest.
(c) The consideration to be received by holders of a particular
class or series of outstanding shares, including common shares, of the
target corporation in a significant business transaction is in cash or
in the same form as the acquiring person has used to acquire the
largest number of shares of the same class or series of shares
previously acquired by the person, and the consideration shall be
distributed promptly.
(d) The significant business transaction is approved at an annual
meeting of shareholders, or special meeting of shareholders called for
such a purpose, no earlier than five years after the acquiring person's
share acquisition time, by a majority of the votes entitled to be
counted within each voting group entitled to vote separately on the
transaction. The votes of all outstanding shares entitled to vote
under this title or the articles of incorporation shall be entitled to
be counted under this subsection except that the votes of shares as to
which an acquiring person has beneficial ownership or voting control
may not be counted to determine whether shareholders have approved a
transaction for purposes of this subsection. The votes of shares as to
which an acquiring person has beneficial ownership or voting control
shall, however, be counted in determining whether a transaction is
approved under other sections of this title and for purposes of
determining a quorum.
(3) Subsection (2) of this section does not apply to a target
corporation that on June 6, 1996, had a provision in its articles of
incorporation, adopted under RCW 23B.17.020(3)(d), expressly electing
not to be covered under RCW 23B.17.020, which is repealed by section 6,
chapter 155, Laws of 1996.
(4) A significant business transaction that is made in violation of
subsection (1) or (2) of this section and that is not exempt under RCW
23B.19.030 is void.