MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary

By: Senator(s) Carlton

AN ACT TO AMEND THE MISSISSIPPI BUSINESS CORPORATION ACT; TO AMEND SECTION 79-4-1.40, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 79-4-6.31, MISSISSIPPI CODE OF 1972, TO REVISE THE ACQUISITION OF ITS OWN SHARES BY A CORPORATION; TO AMEND SECTION 79-4-10.01, MISSISSIPPI CODE OF 1972, TO REVISE A CORPORATION'S AUTHORITY TO AMEND ITS ARTICLES OF INCORPORATION; TO AMEND SECTION 79-4-10.02, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS CONCERNING A CORPORATION'S AUTHORITY TO AMEND ITS ARTICLES OF INCORPORATION BEFORE ISSUANCE OF SHARES, CONTAINED IN SECTION 79-4-10.05, MISSISSIPPI CODE OF 1972; TO AMEND SECTION 79-4-10.03, MISSISSIPPI CODE OF 1972, TO REVISE THE AMENDMENT OF ARTICLES OF INCORPORATION BY BOARDS OF DIRECTORS AND SHAREHOLDERS; TO AMEND SECTION 79-4-10.04, MISSISSIPPI CODE OF 1972, TO REVISE THE VOTING ON AMENDMENTS BY VOTING GROUPS; TO AMEND SECTION 79-4-10.05, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS CONCERNING AMENDMENT OF THE ARTICLES OF INCORPORATION BY THE BOARD OF DIRECTORS CONTAINED IN SECTION 79-4-10.02, MISSISSIPPI CODE OF 1972; TO AMEND SECTION 79-4-10.06, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS CONCERNING ARTICLES OF AMENDMENT; TO AMEND SECTION 79-4-10.07, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS CONCERNING RESTATED ARTICLES OF INCORPORATION; TO AMEND SECTION 79-4-10.08, MISSISSIPPI CODE OF 1972, TO REVISE AMENDMENT OF ARTICLES OF INCORPORATION PURSUANT TO REORGANIZATION; TO AMEND SECTION 79-4-10.09, MISSISSIPPI CODE OF 1972, TO CLARIFY THE EFFECT OF AMENDMENT OF ARTICLES OF INCORPORATION; TO AMEND SECTION 79-4-10.20, MISSISSIPPI CODE OF 1972, TO REVISE AMENDMENT OF BYLAWS BY A BOARD OF DIRECTORS OR SHAREHOLDERS; TO AMEND SECTION 79-4-10.21, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS CONCERNING A BYLAW INCREASING QUORUM OR VOTING REQUIREMENTS FOR DIRECTORS; TO REPEAL SECTION 79-4-10.22, MISSISSIPPI CODE OF 1972, WHICH PROVIDED FOR A BYLAW INCREASING THE QUORUM OR VOTING REQUIREMENT FOR DIRECTORS; TO AMEND SECTION 79-4-11.01, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO AMEND SECTION 79-4-11.02, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS CONTAINED IN SECTION 79-4-11.01, MISSISSIPPI CODE OF 1972, CONCERNING MERGER; TO AMEND SECTION 79-4-11.03, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-11.02, MISSISSIPPI CODE OF 1972, CONCERNING SHARE EXCHANGE; TO AMEND SECTION 79-4-11.04, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-11.03, MISSISSIPPI CODE OF 1972, CONCERNING ACTION ON A PLAN OF MERGER OR SHARE EXCHANGE; TO AMEND SECTION 79-4-11.05, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-11.04, MISSISSIPPI CODE OF 1972, CONCERNING MERGER BETWEEN PARENTS AND SUBSIDIARY OR BETWEEN SUBSIDIARIES; TO AMEND SECTION 79-4-11.06, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-11.05, MISSISSIPPI CODE OF 1972, CONCERNING ARTICLES OF MERGER OR SHARE EXCHANGE; TO AMEND SECTION 79-4-11.07, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-11.06 CONCERNING EFFECT OF MERGER OR SHARE EXCHANGE; TO OMIT THE PROVISIONS OF SECTION 79-4-11.07, MISSISSIPPI CODE OF 1972, CONCERNING MERGER OR SHARE EXCHANGE WITH A FOREIGN CORPORATION; TO CODIFY SECTION 79-4-11.08, MISSISSIPPI CODE OF 1972, CONCERNING ABANDONMENT OF A MERGER OR SHARE EXCHANGE; TO AMEND SECTION 79-4-12.01, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS CONCERNING THE DISPOSITION OF ASSETS IN REGULAR COURSE OF BUSINESS AND MORTGAGE OF ASSETS NOT REQUIRING SHAREHOLDER APPROVAL; TO AMEND SECTION 79-4-12.02, MISSISSIPPI CODE OF 1972, TO REVISE SHAREHOLDERS' APPROVAL OF CERTAIN DISPOSITIONS; TO AMEND SECTION 79-4-14.02, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS CONCERNING DISSOLUTION BY A BOARD OF DIRECTORS AND SHAREHOLDERS; TO AMEND SECTION 79-4-14.03, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS CONCERNING ARTICLES OF DISSOLUTION; TO AMEND SECTION 79-4-14.04, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS CONCERNING REVOCATION OF DISSOLUTION; TO AMEND SECTION 79-4-13.01, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 79-4-13.02, MISSISSIPPI CODE OF 1972, TO REVISE THE RIGHT TO DISSENT TO APPLY TO THE RIGHT OF APPRAISAL; TO AMEND SECTION 79-4-13.03, MISSISSIPPI CODE OF 1972, TO REVISE THE ASSERTION OF RIGHTS BY NOMINEES AND BENEFICIAL OWNERS; TO AMEND SECTION 79-4-13.20, MISSISSIPPI CODE OF 1972, TO REVISE THE NOTICE OF APPRAISAL RIGHTS; TO AMEND SECTION 79-4-13.21, MISSISSIPPI CODE OF 1972, TO REVISE THE NOTICE OF INTENT TO DEMAND PAYMENT; TO AMEND SECTION 79-4-13.22, MISSISSIPPI CODE OF 1972, TO REVISE THE APPRAISAL NOTICE AND FORM; TO AMEND SECTION 79-4-13.23, MISSISSIPPI CODE OF 1972, TO REVISE THE DUTY TO DEMAND PAYMENT AND PERFECTION OF RIGHTS; TO AMEND SECTION 79-4-13.24, MISSISSIPPI CODE OF 1972, TO OMIT ALL THE LANGUAGE CONCERNING SHARE RESTRICTIONS AND TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-13.25, MISSISSIPPI CODE OF 1972, CONCERNING PAYMENT; TO AMEND SECTION 79-4-13.25, MISSISSIPPI CODE OF 1972, TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-13.27, MISSISSIPPI CODE OF 1972, CONCERNING AFTER-ACQUIRED SHARES; TO AMEND SECTION 79-4-13.26, MISSISSIPPI CODE OF 1972, BY OMITTING ITS CONTENT ENTIRELY AND TO INCORPORATE WITH REVISIONS THE PROVISIONS OF SECTION 79-4-13.28, MISSISSIPPI CODE OF 1972, CONCERNING PROCEDURE IF SHAREHOLDER IS DISSATISFIED WITH PAYMENT OR OFFER; TO AMEND SECTION 79-4-13.30, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS CONCERNING COURT ACTION; TO AMEND SECTION 79-4-13.31, MISSISSIPPI CODE OF 1972, TO REVISE COURT COSTS AND COUNSEL FEES; TO AMEND SECTION 79-14-101, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS IN THE MISSISSIPPI LIMITED PARTNERSHIP ACT; TO AMEND SECTION 79-14-211, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS CONCERNING MERGERS INVOLVING LIMITED PARTNERSHIPS; TO AMEND SECTION 79-29-103, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS IN THE MISSISSIPPI LIMITED LIABILITY COMPANY ACT; TO AMEND SECTION 79-29-202, MISSISSIPPI CODE OF 1972, TO REVISE REQUIREMENTS CONCERNING A CERTIFICATE OF FORMATION; TO AMEND SECTION 79-29-209, MISSISSIPPI CODE OF 1972, TO REVISE MERGER OF LIMITED LIABILITY COMPANIES; TO CREATE NEW SECTION 79-29-210, MISSISSIPPI CODE OF 1972, TO MAKE PROVISION FOR A LIMITED LIABILITY COMPANY THAT IS A PARTY TO A MERGER; TO CREATE NEW SECTION 79-29-211, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A CERTIFICATE OF MERGER; TO CREATE NEW SECTION 79-29-212, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT OF A MERGER; TO CREATE NEW SECTION 79-29-213, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EVENT OF ABANDONMENT OF A MERGER; TO CREATE NEW SECTION 79-29-214, MISSISSIPPI CODE OF 1972, TO SPECIFY APPRAISAL RIGHTS IN A LIMITED LIABILITY COMPANY MERGER; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 79-4-1.40, Mississippi Code of 1972, is amended as follows:

79-4-1.40. In Section 79-4-1.01 et seq.:

(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 written that a reasonable person against whom the writing 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) "Corporation" or "domestic corporation" means a corporation for profit, which is not a foreign corporation, incorporated under or subject to the provisions of Section 79-4-1.01 et seq.

(5) "Deliver" or "delivery" means any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery and electronic transmission.

(6) "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 of any of its shares. A distribution may be in the form of a declaration or payment of a dividend; a purchase, redemption or other acquisition of shares; a distribution of indebtedness; or otherwise.

(7) "Effective date of notice" is defined in Section 79-4-1.41.

(8) "Electronic transmission" or "electronically transmitted" means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient.

(9) "Employee" includes an officer but not a director. A director may accept duties that make him also an employee.

(10) "Entity" includes corporation and foreign corporation; not-for-profit corporation; profit and not-for-profit unincorporated association; business trust, estate, partnership, trust and two (2) or more persons having a joint or common economic interest; and state, United States and foreign government.

(11) "Foreign corporation" means a corporation for profit incorporated under a law other than the law of this state.

(12) "Governmental subdivision" includes authority, county, district and municipality.

(13) "Includes" denotes a partial definition.

(14) "Individual" includes the estate of an incompetent or deceased individual.

(15) "Means" denotes an exhaustive definition.

(16) "Notice" is defined in Section 79-4-1.41.

(17) "Person" includes individual and entity.

(18) "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.

(19) "Proceeding" includes civil suit and criminal, administrative and investigatory action.

(20) "Record date" means the date established under Article 6 or 7 on which a corporation determines the identity of its shareholders and their shareholdings for purposes of Section 79-4-1.01 et seq. 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.

(21) "Secretary" means the corporate officer to whom the board of directors has delegated responsibility under Section 79-4-8.40(c) for custody of the minutes of the meetings of the board of directors and of the shareholders and for authenticating records of the corporation.

(22) "Shares" mean the unit into which the proprietary interests in a corporation are divided.

(23) "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.

(24) "Sign" or "signature" includes any manual, facsimile, conformed or electronic signature.

(25) "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.

(26) "Subscriber" means a person who subscribes for shares in a corporation, whether before or after incorporation.

(27) "United States" includes district, authority, bureau, commission, department and any other agency of the United States.

(28) "Voting group" means all shares of one or more classes or series that under the articles of incorporation or Section 79-4-1.01 et seq. 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 Section 79-4-1.01 et seq. to vote generally on the matter are for that purpose a single voting group.

(29) "Voting power" means the current power to vote in the election of directors.

SECTION 2. Section 79-4-6.31, Mississippi Code of 1972, is amended as follows:

79-4-6.31. (a) A corporation may acquire its own shares, and shares so acquired constitute authorized but unissued shares.

(b) If the articles of incorporation prohibit the reissue of the acquired shares, the number of authorized shares is reduced by the number of shares acquired * * *.

SECTION 3. Section 79-4-10.01, Mississippi Code of 1972, is amended as follows:

79-4-10.01. (a) A corporation may amend its articles of incorporation at any time to add or change a provision that is required or permitted in the articles of incorporation * * * as of the effective date of the amendment or to delete a provision that is not required to be contained in the articles of incorporation.

(b) A shareholder of the corporation does not have a vested property right resulting from any provision in the articles of incorporation, including provisions relating to management, control, capital structure, dividend entitlement or purpose or duration of the corporation.

SECTION 4. Section 79-4-10.02, Mississippi Code of 1972, is amended as follows:

79-4-10.02. If a corporation has not yet issued shares, its board of directors, or its incorporators, if it has no board of directors, may adopt one or more amendments to the corporation's articles of incorporation.

SECTION 5. Section 79-4-10.03, Mississippi Code of 1972, is amended as follows:

79-4-10.03. If a corporation has issued shares, an amendment to the articles of incorporation shall be adopted in the following manner:

(a) The proposed amendment must be adopted by the board of directors * * *.

(b) Except as provided in Sections 79-4-10.05, 79-4-10.07, and 79-4-10.08, after adopting the proposed amendment the board of directors must submit the amendment to the shareholders for their approval. The board of directors must also transmit to the shareholders a recommendation that the shareholders approve the amendment, unless the board of directors makes a determination that because of conflicts of interest or other special circumstances it should not make such a recommendation, in which case the board of directors must transmit to the shareholders the basis for that determination.

(c) The board of directors may condition its submission of the * * * amendment to the shareholders on any basis.

(d) If the amendment is required to be approved by the shareholders and the approval is to be given at a meeting, the corporation must notify each shareholder, whether or not entitled to vote, of the * * * meeting of shareholders at which the amendment is to be submitted for approval. The notice * * * must * * * state that the purpose, or one of the purposes, of the meeting is to consider the * * * amendment and must contain or be accompanied by a copy * * * of the amendment.

(e) Unless * * * the articles of incorporation * * * or the board of directors acting pursuant to subsection (c), requires a greater vote or a * * * greater number of shares to be present, approval of the amendment requires the approval of the shareholders at a meeting at which a quorum consisting of at least a majority of the votes entitled to be cast on the amendment exists, and, if any class or series of shares is entitled to vote as a separate group on the amendment, except as provided in Section 79-4-10.04(c), the approval of each such separate voting group at a meeting at which a quorum of the voting group consisting of at least a majority of the votes entitled to be cast on the amendment by that voting group * * * exists.

SECTION 6. Section 79-4-10.04, Mississippi Code of 1972, is amended as follows:

79-4-10.04. (a) If a corporation has more than one (1) class of shares outstanding, the holders of the outstanding shares of a class are entitled to vote as a separate voting group, if shareholder voting is otherwise required by the Mississippi Business Corporation Act, on a proposed amendment to the articles of incorporation if the amendment would:

(1) * * * Effect an exchange or reclassification of all or part of the shares of the class into shares of another class;

(2) Effect an exchange or reclassification, or create the right of exchange, of all or part of the shares of another class into shares of the class;

(3) Change the * * * rights, preferences or limitations of all or part of the shares of the class;

(4) Change the shares of all or part of the class into a different number of shares of the same class;

(5) Create a new class of shares having rights or preferences with respect to distributions or to dissolution that are prior or superior * * * to the shares of the class;

(6) Increase the rights, preferences or number of authorized shares of any class that, after giving effect to the amendment, have rights or preferences with respect to distributions or to dissolution that are prior or superior * * * to the shares of the class;

(7) Limit or deny an existing preemptive right of all or part of the shares of the class; or

(8) Cancel or otherwise affect rights to distributions * * * that have accumulated but not yet been authorized on all or part of the shares of the class.

(b) If a proposed amendment would affect a series of a class of shares in one or more of the ways described in subsection (a), the holders of shares of that series are entitled to vote as a separate voting group on the proposed amendment.

(c) If a proposed amendment that entitles the holders of two (2) or more classes or series of shares to vote as separate voting groups under this section would affect those two (2) or more classes or series in the same or a substantially similar way, the holders of shares of all the classes or series so affected must vote together as a single voting group on the proposed amendment, unless otherwise provided in the articles of incorporation or required by the board of directors.

(d) A class or series of shares is entitled to the voting rights granted by this section although the articles of incorporation provide that the shares are nonvoting shares.

(e) The provisions of subsection (a)(6) * * * shall not apply to preferred stock issued by a public utility subject to the provisions of the Public Utility Holding Company Act, 15 United States Code, Section 79 et seq., where the issuance of its securities is regulated by an agency of the United States.

SECTION 7. Section 79-4-10.05, Mississippi Code of 1972, is amended as follows:

79-4-10.05. Unless the articles of incorporation provide otherwise, a corporation's board of directors may adopt amendments to the corporation's articles of incorporation without shareholder approval:

(1) To extend the duration of the corporation if it was incorporated at a time when limited duration was required by law;

(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 (1) class of shares outstanding:

(a) To change each issued and unissued authorized share of the class into a greater number of whole shares of that class; or

(b) To increase the number of authorized shares of the class to the extent necessary to permit the issuance of shares as a share dividend;

(5) To change the corporate name by substituting the word "corporation," "incorporated," "company," "limited" or the abbreviation "corp.," "inc.," "co." or "ltd." for a similar word or abbreviation in the name, or by adding, deleting or changing a geographical attribution for the name;

(6) To reflect a reduction in authorized shares, as a result of the operation of Section 79-4-6.31(b), when the corporation has acquired its own shares and the articles of incorporation prohibit the reissue of the acquired shares;

(7) To delete a class of shares from the articles of incorporation, as a result of the operation of Section 79-4-6.31(b), when there are no remaining shares of the class because the corporation has acquired all shares of the class and the articles of incorporation prohibit the reissue of the acquired shares; or

(8) To make any change expressly permitted by Section 79-4-6.02(d) to be made without shareholder approval.

SECTION 8. Section 79-4-10.06, Mississippi Code of 1972, is amended as follows:

79-4-10.06. After an amendment to the articles of incorporation has been adopted and approved in the manner required by the Mississippi Business Corporation Act and by the articles of incorporation, the corporation shall deliver to the Secretary of State, for filing, articles of amendment, which shall set 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; and

(5) If an amendment:

(a) Was adopted by the incorporators or board of directors without shareholder approval, a statement that the amendment was duly approved by the incorporators or by the board of directors, as the case my be, and that shareholder approval was not required;

(b) Required approval by the shareholders, a statement that the amendment was duly approved by the shareholders in the manner required by the Mississippi Business Corporation Act and by the articles of incorporation.

SECTION 9. Section 79-4-10.07, Mississippi Code of 1972, is amended as follows:

79-4-10.07. (a) A corporation's board of directors may restate its articles of incorporation at any time, with or without shareholder approval, to consolidate all amendments into a single document.

(b) If the restated articles include one or more new amendments * * * that require shareholder approval, the amendments must be adopted and approved as provided in Section 79-4-10.03.

(c) A corporation that restates 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 which states that the restated articles consolidate all amendments into a single document and, if a new amendment is included in the restated articles, which also includes the statements required under Section 79-4-10.06.

(d) Duly adopted restated articles of incorporation supersede the original articles of incorporation and all amendments thereto.

(e) 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 (c).

SECTION 10. Section 79-4-10.08, Mississippi Code of 1972, is amended as follows:

79-4-10.08. (a) A corporation's articles of incorporation may be amended without action by the board of directors or shareholders to carry out a plan of reorganization ordered or decreed by a court of competent jurisdiction under the authority of a law of the United States.

(b) The individual or individuals designated by the court 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 approved by the court;

(3) The date of the court's order or decree approving the articles of amendment;

(4) The title of the reorganization proceeding in which the order or decree was entered; and

(5) A statement that the court had jurisdiction of the proceeding under federal statute.

(c) 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.

SECTION 11. Section 79-4-10.09, Mississippi Code of 1972, is amended as follows:

79-4-10.09. An amendment to the articles of incorporation does not affect a cause of action existing against or in favor of the corporation, a proceeding to which the corporation is a party, or the existing rights of persons other than shareholders of the corporation. An amendment changing a corporation's name does not abate a proceeding brought by or against the corporation in its former name.

SECTION 12. Section 79-4-10.20, Mississippi Code of 1972, is amended as follows:

79-4-10.20. (a) A corporation's shareholders may amend or repeal the corporation's bylaws.

(b) A corporation's board of directors may amend or repeal the corporation's bylaws unless:

(1) The articles of incorporation or Section 79-4-10.21 reserve that power exclusively to the shareholders in whole or part; or

(2) The shareholders in amending, repealing, or adopting a bylaw * * * expressly provide that the board of directors may not amend, repeal, or reinstate that bylaw.

SECTION 13. Section 79-4-10.21, Mississippi Code of 1972, is amended as follows:

79-4-10.21. (a) * * * A bylaw that increases a quorum or voting requirement for the board of directors may be amended or repealed:

(1) If adopted by the shareholders, only by the shareholders, unless the bylaw otherwise provides;

(2) If adopted by the board of directors, either by the shareholders or by the board of directors.

(b) * * * A bylaw adopted or amended by the shareholders that increases a quorum or voting requirement for the board of directors may provide that it can be amended or repealed only by a specified vote of either the shareholders or the board of directors.

(c) Action by the board of directors under subsection (a) to amend or repeal a bylaw that changes the quorum or voting requirement for the board of directors must meet the same quorum requirement and be adopted by the same vote * * * required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

SECTION 14. Section 79-4-10.22, Mississippi Code of 1972, which provides for bylaws increasing quorum or voting requirement for directors, is repealed.

SECTION 15. Section 79-4-11.01, Mississippi Code of 1972, is amended as follows:

79-4-11.01. As used in this chapter:

(a) "Interests" means the proprietary interests in an other entity.

(b) "Merger" means a business combination pursuant to Section 79-4-11.02

(c) "Organizational documents" means the basic document or documents that create, or determine the internal governance of, an other entity.

(d) "Other entity" means any association or legal entity, other than a domestic or foreign corporation, organized to conduct business, including, without limitation, limited partnerships, general partnerships, limited liability partnerships, limited liability companies, joint ventures, joint stock companies, and business trusts.

(e) "Party to a merger" or "party to a share exchange" means any domestic or foreign corporation or other entity that will either:

(1) Merge under a plan of merger;

(2) Acquire shares or interests of another corporation or an other entity in a share exchange; or

(3) Have all of its shares or interests or all of one or more classes or series of its shares or interests acquired in a share exchange.

(f) "Share exchange" means a business combination pursuant to Section 79-4-11.03.

(g) "Survivor" in a merger means the corporation or other entity into which one or more other corporations or other entities are merged. A survivor of a merger may preexist the merger or be created by the merger.

SECTION 16. Section 79-4-11.02, Mississippi Code of 1972, is amended as follows:

79-4-11.02. (a) One or more domestic corporations may merge with a domestic or foreign corporation or other entity pursuant to a plan of merger.

(b) A foreign corporation, or a domestic or foreign other entity, may be a party to the merger, or may be created by the terms of the plan of merger, only if:

(1) The merger is permitted by the laws under which the corporation or other entity is organized or by which it is governed; and

(2) In effecting the merger, the corporation or other entity complies with such laws and with its articles of incorporation or organizational documents.

(c) The plan of merger must include:

(1) The name of each corporation or other entity that will merge and the name of the corporation or other entity that will be the survivor of the merger;

(2) The terms and conditions of the merger;

(3) The manner and basis of converting the shares of each merging corporation and interest of each merging other entity into shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing;

(4) The articles of incorporation of any corporation, or the organizational documents of any other entity to be created by the merger, or if a new corporation or other entity is not to be created by the merger, any amendments to the survivor's articles of incorporation, or organizational documents; and

(5) Any other provisions required by the laws under which any party to the merger is organized or by which it is governed, or by the articles of incorporation or organizational documents of any such party.

(d) The terms described in subsections (c)(2) and (c)(3) may be made dependent on facts ascertainable outside of the plan of merger, provided that those facts are objectively ascertainable. The term "facts" includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation.

(e) The plan of merger may also include a provision that the plan may be amended prior to filing the articles of merger with the Secretary of State, provided that if the shareholders of a domestic corporation that is a party to the merger are required or permitted to vote on the plan, the plan must provide that subsequent to approval of the plan by such shareholders the plan may not be amended to:

(1) Change the amount or kind of shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, or other property to be received by the shareholders of or owners of interests in any party to the merger upon conversion of their shares or interests under the plan;

(2) Change the articles of incorporation of any corporation or the organizational documents of any other entity, that will survive or be created as a result of the merger, except for changes permitted by Section 79-4-10.05 or by comparable provisions of the laws under which the foreign corporation or other entity is organized or governed; or

(3) Change any of the other terms or conditions of the plan if the change would adversely affect such shareholders in any material respect.

SECTION 17. Section 79-4-11.03, Mississippi Code of 1972, is amended as follows:

79-4-11.03. (a) Through a share exchange:

(1) A domestic corporation may acquire all of the shares of one or more classes or series of shares of another domestic or foreign corporation, or all of the interests of one or more classes or series of interests of a domestic or foreign other entity, in exchange for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing, pursuant to a plan of share exchange; or

(2) All of the shares of one or more classes or series of shares of a domestic corporation may be acquired by another domestic or foreign corporation or other entity, in exchange for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing, pursuant to a plan of share exchange.

(b) A foreign corporation, or a domestic or foreign other entity, may be a party to the share exchange only if:

(1) The share exchange is permitted by the laws under which the corporation or other entity is organized or by which it is governed; and

(2) In effecting the share exchange, the corporation or other entity complies with such laws and with its articles of incorporation or organizational documents.

(c) The plan of share exchange must include:

(1) The name of each corporation or other entity whose shares or interests will be acquired and the name of the corporation or other entity that will acquire those shares or interests;

(2) The terms and conditions of the share exchange;

(3) The manner and basis of exchanging shares of a corporation or interests in an other entity whose shares or interests will be acquired under the share exchange into shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing; and

(4) Any other provisions required by the laws under which any party to the share exchange is organized or by the articles of incorporation or organizational documents of any such party.

(d) The terms described in subsections (c)(2) and (c)(3) may be made dependent on facts ascertainable outside the plan of share exchange, provided that those facts are objectively ascertainable. The term "facts" includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation.

(e) The plan of share exchange may also include a provision that the plan may be amended prior to filing of the articles of share exchange with the Secretary of State, provided that if the shareholders of a domestic corporation that is a party to the share exchange are required or permitted to vote on the plan, the plan must provide that subsequent to approval of the plan by such shareholders the plan may not be amended to:

(1) Change the amount or kind of shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, or other property to be issued by the corporation or to be received by the shareholders of or owners of interests in any party to the share exchange in exchange for their shares or interests under the plan; or

(2) Change any of the terms or conditions of the plan if the change would adversely affect such shareholders in any material respect.

(f) Section 79-4-11.03 does not limit the power of a domestic corporation to acquire shares of another corporation or interests in another entity in a transaction other than a share exchange.

SECTION 18. Section 79-4-11.04, Mississippi Code of 1972, is amended as follows:

79-4-11.04. In the case of a domestic corporation that is a party to a merger or share exchange:

(a) The plan of merger or share exchange, must be adopted by the board of directors.

(b) Except as provided in subsection (g) and in Section 79-4-11.05, after adopting the plan of merger, the board of directors must submit the plan to the shareholders for their approval. After adopting the plan of share exchange, the board of directors of the corporation whose shares will be acquired in the share exchange must submit the plan to the shareholders for their approval. The board of directors must also transmit to the shareholders a recommendation that the shareholders approve the plan of merger or share exchange, unless the board of directors makes a determination that because of conflicts of interest or other special circumstances it should not make such a recommendation, in which case the board of directors must transmit to the shareholders the basis for that determination.

(c) The board of directors may condition its submission of the plan of merger or share exchange to the shareholders on any basis.

(d) If the plan of merger or share exchange is required to be approved by the shareholders, and if the approval is to be given at a meeting, the corporation must notify each shareholder, whether or not entitled to vote, of the meeting of shareholders at which the plan is to be submitted for approval. The notice must state that the purpose, or one (1) of the purposes, of the meeting is to consider the plan and must contain or be accompanied by a copy or summary of the plan. If the corporation is to be merged into an existing corporation or other entity, the notice shall also include or be accompanied by a copy or summary of the articles of incorporation or organizational documents of that corporation or other entity. If the corporation is to be merged into a corporation or other entity that is to be created pursuant to the merger, the notice shall include or be accompanied by a copy or a summary of the articles of incorporation or organizational documents of the new corporation or other entity.

(e) Unless the articles of incorporation, or the board of directors acting pursuant to subsection (c), requires a greater vote or a greater number of votes to be present, the approval of the plan of merger or share exchange shall require the approval of the shareholders at a meeting at which a quorum consisting of at least a majority of the votes entitled to be cast on the plan exists, and, if any class or series of shares is entitled to vote as a separate group on the plan of merger or share exchange, the approval of each such separate voting group at a meeting at which a quorum of the voting group consisting of at least a majority of the votes entitled to be cast on the merger or share exchange by that voting group is present.

(f) Separate voting by voting groups is required:

(1) On a plan of merger, by each class or series of shares that (A) are to be converted, pursuant to the provisions of the plan of merger, into shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing, or (B) would have a right to vote as a separate group on a provision of the plan that, if contained in a proposed amendment to articles of incorporation, would require action by separate voting groups under Section 79-4-10.04;

(2) On a plan of share exchange, by each class or series of shares included in the exchange, with each class or series constituting a separate voting group; and

(3) On a plan of merger or share exchange, if the voting group is entitled under the articles of incorporation to vote as a voting group to approve a plan of merger or share exchange.

(g) Unless the articles of incorporation otherwise provide, approval by the corporation's shareholders of a plan of merger is not required if:

(1) The corporation will survive the merger; and

(2) Except for amendments permitted by Section 79-4-10.05, its articles of incorporation will not be changed; and

(3) Each shareholder of the corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical preferences, limitations, and relative rights, immediately after the effective date of change; and

(4) 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 by more than twenty percent (20%) the total number of voting shares of the surviving corporation outstanding immediately before the merger; and

(5) 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 by more than twenty percent (20%) the total number of participating shares outstanding immediately before the merger.

(h) As used in subsection (g):

(1) "Participating shares" means shares that entitle their holders to participate without limitation in distributions.

(2) "Voting shares" means shares that entitle their holders to vote unconditionally in elections of directors.

(i) If as a result of a merger or share exchange one or more shareholders of a domestic corporation would become subject to personal liability for the obligations or liabilities of any other person or entity, approval of the plan of merger shall require the execution, by each such shareholder, of a separate written consent to become subject to such personal liability.

SECTION 19. Section 79-4-11.05, Mississippi Code of 1972, is amended as follows:

79-4-11.05. (a) A domestic parent corporation that owns shares of a domestic or foreign subsidiary corporation that carry at least ninety percent (90%) of the voting power of each class and series of the outstanding shares of the subsidiary that have voting power may merge the subsidiary into itself or into another such subsidiary, or merge itself into the subsidiary, without the approval of the board of directors or shareholders of the subsidiary unless the articles of incorporation of any of the corporations otherwise provide, and unless, in the case of a foreign subsidiary, approval by the subsidiary's board of directors or shareholders is required by the laws under which the subsidiary is organized.

(b) If under subsection (a) approval of a merger by the subsidiary's shareholders is not required, the parent corporation shall, within ten (10) days after the effective date of the merger, notify each of the subsidiary's shareholders that the merger has become effective.

(c) Except as provided in subsections (a) and (b), a merger between a parent and a subsidiary shall be governed by the provisions of Title 79, Chapter 4, Article 11 applicable to mergers generally.

SECTION 20. Section 79-4-11.06, Mississippi Code of 1972, is amended as follows:

79-4-11.06. (a) After a plan of merger or share exchange has been adopted and approved as required by the Mississippi Business Corporation Act, articles of merger or share exchange shall be executed on behalf of each party to the merger or share exchange by any officer or other duly authorized representative. The articles shall set forth:

(1) The names of the parties to the merger or share exchange and the date on which the merger or share exchange occurred or is to be effective;

(2) If the articles of incorporation of the survivor of a merger are amended, or if a new corporation is created as a result of a merger, the amendments to the survivor's articles of incorporation or the articles of incorporation of the new corporation;

(3) If the plan of merger or share exchange required approval by the shareholders of a domestic corporation that was a party to the merger or share exchange, a statement that the plan was duly approved by the shareholders and, if voting by any separate voting group was required, by each such separate voting group, in the manner required by the Mississippi Business Corporation Act and the articles of incorporation;

(4) If the plan of merger or share exchange did not require approval by the shareholders of a domestic corporation that was a party to the merger or share exchange, a statement to that effect; and

(5) As to each foreign corporation and each other entity that was a party to the merger or share exchange, a statement that the plan and the performance of its terms were duly authorized by all action required by the laws under which the corporation or other entity is organized or by which it is governed, and by its articles of incorporation or organizational documents.

(b) Articles of merger or share exchange shall be delivered to the Secretary of State for filing by the survivor of the merger or the acquiring corporation in a share exchange and shall take effect on the effective date.

SECTION 21. Section 79-4-11.07, Mississippi Code of 1972, is amended as follows:

79-4-11.07. (a) When a merger becomes effective:

(1) The corporation or other entity that is designated in the plan of merger as the survivor continues or comes into existence, as the case may be;

(2) The separate existence of every corporation or other entity that is merged into the survivor ceases;

(3) All property owned by, and every contract right possessed by, each corporation or other entity that merges into the survivor is vested in the survivor without reversion or impairment;

(4) All liabilities of each corporation or other entity that is merged into the survivor are vested in the survivor;

(5) The name of the survivor may, but need not be, substituted in any pending proceeding for the name of any party to the merger whose separate existence ceased in the merger;

(6) The articles of incorporation or organizational documents of the survivor are amended to the extent provided in the plan of merger;

(7) The articles of incorporation or organizational documents of a survivor that is created by the merger become effective; and

(8) The shares of each corporation that is a party to the merger, and the interests in an other entity that is a party to a merger, that are to be converted under the plan of merger into shares, interests, obligations, rights to acquire securities, other securities, cash, other property, or any combination of the foregoing, are converted and the former holders of such shares or interests are entitled only to the rights provided to them in the plan of merger or to any rights they may have under Title 79, Chapter 4, Article 13.

(b) When a share exchange becomes effective, the shares of each domestic corporation that are to be exchanged for shares or other securities, interests, obligations, rights to acquire shares or securities, other securities, cash, other property, or any combination of the foregoing, are entitled only to the rights provided to them in the plan of share exchange or to any rights they may have under Title 79, Chapter 4, Article 13.

(c) Any shareholder of a domestic corporation that is a party to a merger or share exchange who, prior to the merger or share exchange, was liable for the liabilities or obligations of such corporation, shall not be released from such liabilities or obligations by reason of the merger or share exchange.

(d) Upon a merger becoming effective, a foreign corporation, or a foreign other entity, that is the survivor of the merger is deemed to:

(1) Appoint the Secretary of State as its agent for service of process in a proceeding to enforce the rights of shareholders of each domestic corporation that is a party to the merger who exercise appraisal rights; and

(2) Agree that it will promptly pay the amount, if any, to which such shareholders are entitled under Title 79, Chapter 4, Article 13.

SECTION 22. This section shall be codified as Section 79-4-11.08, Mississippi Code of 1972:

79-4-11.08. (a) Unless otherwise provided in a plan of merger or share exchange or in the laws under which a foreign corporation or a domestic or foreign other entity that is a party to a merger or a share exchange is organized or by which it is governed, after the plan has been adopted and approved as required by this article, and at any time before the merger or share exchange has become effective, it may be abandoned by any party thereto without action by the party's shareholders or owners of interests, in accordance with any procedures set forth in the plan of merger or share exchange or, if no such procedures are set forth in the plan, in the manner determined by the board of directors of a corporation, or the managers of an other entity, subject to any contractual rights of other parties to the merger or share exchange.

(b) If a merger or share exchange is abandoned under subsection (a) after articles of merger or share exchange have been filed with the Secretary of State but before the merger or share exchange has become effective, a statement that the merger or share exchange has been abandoned in accordance with this section, executed on behalf of a party to the merger or share exchange by an officer or other duly authorized representative, shall be delivered to the Secretary of State for filing prior to the effective date of the merger or share exchange. Upon filing, the statement shall take effect and the merger or share exchange shall be deemed abandoned and shall not become effective.

SECTION 23. Section 79-4-12.01, Mississippi Code of 1972, is amended as follows:

79-4-12.01. * * * No approval of the shareholders of a corporation is required, unless the articles of incorporation otherwise provide:

(1) To sell, lease, exchange, or otherwise dispose of any or * * * all of the corporation's assets in the usual and regular course of business;

(2) To mortgage, pledge, dedicate to the repayment of indebtedness (whether with or without recourse) or otherwise encumber any or all of the corporation's assets, whether or not in the usual and regular course of business; * * *

(3) To transfer any or all of the corporation's assets to one or more corporations or other entities all of the shares or interests of which are owned by the corporation; or

(4) To distribute assets pro rata to the holders of one or more classes or series of the corporation's shares.

SECTION 24. Section 79-4-12.02, Mississippi Code of 1972, is amended as follows:

79-4-12.02. (a) A * * * sale, lease, exchange, or other disposition of assets, other than a disposition described in Section 79-4-12.01, requires approval of the corporation's shareholders if the disposition would leave the corporation without a significant continuing business activity. If a corporation retains a business activity that represented at least twenty-five percent (25%) of total assets at the end of the most recently completed fiscal year, and twenty-five (25%) of either income from continuing operations before taxes or revenues from continuing operations for that fiscal year, in each case of the corporation and its subsidiaries on a consolidated basis, the corporation will conclusively be deemed to have retained a significant continuing business activity.

(b) A disposition that requires approval of the shareholders under subsection (a) shall be initiated by a resolution by the board of directors authorizing the disposition. After adoption of such a resolution, the board of directors shall submit the proposed disposition to the shareholders for their approval. The board of directors shall also transmit to the shareholders a recommendation that the shareholders approve the proposed disposition, unless the board of directors makes a determination that because of conflicts of interest or other special circumstances it should not make such a recommendation, in which case the board of directors shall transmit to the shareholders * * * the basis for that determination.

(c) The board of directors may condition its submission of a disposition to the shareholders under subsection (b) on any basis.

(d) If a disposition is required to be approved by the shareholders under subsection (a), and if the approval is to be given at a meeting, the corporation shall notify each shareholder, whether or not entitled to vote, of the * * * meeting of shareholders at which the disposition is to be submitted for approval. The notice shall state that the purpose, or one of the purposes, of the meeting is to consider the * * * disposition * * * and shall contain * * * a description of the disposition, including the terms and conditions thereof and the consideration to be received by the corporation.

(e) Unless the articles of incorporation or the board of directors acting pursuant to subsection (c) require a greater vote, or a greater number of votes to be present, the approval of a disposition by the shareholders shall require the approval of the shareholders at a meeting at which a quorum consisting of at least a majority of * * * the votes entitled to be cast on the disposition exists.

(f) After a * * * disposition has been approved by the shareholders under subsection (b), and at any time before the disposition has been consummated, it may be abandoned by the corporation without action by the shareholders, subject to any contractual rights of other parties to the disposition.

(g) A disposition of assets in the course of dissolution under Title 79, Chapter 4, Article 14 is not governed by this section.

(h) The assets of a direct or indirect consolidated subsidiary shall be deemed the assets of the parent corporation for the purposes of this section.

SECTION 25. Section 79-4-14.02, Mississippi Code of 1972, is amended as follows:

79-4-14.02. (a) A corporation's board of directors may propose dissolution for submission to the shareholders.

(b) For a proposal to dissolve to be adopted:

(1) 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

(2) The shareholders entitled to vote must approve the proposal to dissolve as provided in subsection (e).

(c) The board of directors may condition its submission of the proposal for dissolution on any basis.

(d) The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders' meeting * * *. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolving the corporation.

(e) Unless the articles of incorporation or the board of directors acting pursuant to subsection (c) require a greater vote, a greater number of shares to be present, or a vote by voting groups, adoption of the proposal to dissolve shall require the approval of the shareholders at a meeting at which a quorum consisting of at least a majority of * * * the votes entitled to be cast exists.

SECTION 26. Section 79-4-14.03, Mississippi Code of 1972, is amended as follows:

79-4-14.03. (a) At any time after dissolution is authorized, the corporation may dissolve by delivering to the Secretary of State for filing articles of dissolution setting forth:

(1) The name of the corporation;

(2) The date dissolution was authorized; and

(3) If dissolution was approved by the shareholders, a statement that the proposal to dissolve was duly approved by the shareholders in the manner required by the Mississippi Business Corporation Act and by the articles of incorporation.

(b) A corporation is dissolved upon the effective date of its articles of dissolution.

SECTION 27. Section 79-4-14.04, Mississippi Code of 1972, is amended as follows:

79-4-14.04. (a) A corporation may revoke its dissolution within one hundred twenty (120) days of its effective date.

(b) Revocation of dissolution must be authorized in the same manner as the dissolution was authorized unless that authorization permitted revocation by action of the board of directors alone, in which event the board of directors may revoke the dissolution without shareholder action.

(c) After the revocation of dissolution is authorized, 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:

(1) The name of the corporation;

(2) The effective date of the dissolution that was revoked;

(3) The date that the revocation of dissolution was authorized;

(4) If the corporation's board of directors (or incorporators) revoked the dissolution, a statement to that effect;

(5) 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

(6) If shareholder action was required to revoke the dissolution, the information required by Section 79-4-14.03(a)(3) * * *.

(d) Unless a delayed effective date is specified, revocation of dissolution is effective upon the effective date of the articles of revocation of dissolution are filed.

(e) 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.

SECTION 28. Section 79-4-13.01, Mississippi Code of 1972, is amended as follows:

79-4-13.01. In this article:

(1) "Affiliate" means a person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with another person or is a senior executive thereof. For purposes of Section 79-4-13.02(b)(4), a person is deemed to be an affiliate of its senior executives.

(2) "Beneficial shareholder" means a person who is the beneficial owner of shares held in a voting trust or by a nominee on the beneficial owner's behalf.

(3) "Corporation" means the issuer of the shares held by a shareholder demanding appraisal and, for matters covered in Sections 79-4-13.22 through 79-4-13.31, includes the surviving entity in a merger * * *.

(4) "Fair value" * * * means the value of the corporation's shares determined:

(i) Immediately before the effectuation of the corporate action to which the shareholder objects * * *;

(ii) Using customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction requiring appraisal; and

(iii) Without discounting for lack of marketability or minority status except, if appropriate, for amendments to the articles pursuant to Section 79-4-13.02(a)(5).

(5) "Interest" means interest from the effective date of the corporate action until the date of payment, at the * * * rate of interest on judgements in this state on the effective date of the corporate action.

(6) "Preferred shares" means a class or series of shares whose holders have preference over any other class or series with respect to distributions.

(7) "Record shareholder" means the person in whose name shares are registered in the records of the corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with the corporation.

(8) "Senior executive" means the chief executive officer, chief operating officer, chief financial officer, and anyone in charge of a principal business unit or function.

(9) "Shareholder" means both a record shareholder and a beneficial shareholder.

SECTION 29. Section 79-4-13.02, Mississippi Code of 1972, is amended as follows:

79-4-13.02. (a) A shareholder is entitled to appraisal rights, and to obtain payment of the fair value of that shareholder's shares, in the event of * * * any of the following corporate actions:

(1) Consummation of a * * * merger to which the corporation is a party (i) if shareholder approval is required for the merger by Section 79-4-11.04 * * * and the shareholder is entitled to vote on the merger, except that appraisal rights shall not be available to any shareholder of the corporation with respect to shares of any class or series that remain outstanding after consummation of the merger, or (ii) if the corporation is a subsidiary and the merger is governed by Section 79-4-11.05;

(2) Consummation of a * * * share exchange to which the corporation is a party as the corporation whose shares will be acquired * * * if the shareholder is entitled to vote on the exchange, except that appraisal rights shall not be available to any shareholder of the corporation with respect to any class or series of shares of the corporation that is not exchanged;

(3) Consummation of a disposition of assets pursuant to Section 79-4-12.02 if the shareholder is entitled to vote on the disposition * * *;

(4) An amendment of the articles of incorporation with respect to a class or series of shares that reduces the number of shares of a class or series owned by the shareholder to a fraction of a share if the corporation has the obligation or right to repurchase the fractional share so created; or

(5) Any other amendment to the articles of incorporation, merger, share exchange or disposition of assets to the extent provided by the articles of incorporation, bylaws or a resolution of the board of directors * * *.

(b) Notwithstanding subsection (a), the availability of appraisal rights under subsections (a)(1), (2), (3) and (4) shall be limited in accordance with the following provisions:

(1) Appraisal rights shall not be available for the holders of shares of any class or series of shares which is:

(i) Listed on the New York Stock Exchange or the American Stock Exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc.; or

(ii) Not so listed or designated, but has at least Two Thousand (2,000) shareholders and the outstanding shares of such class or series has a market value of at least Twenty Million Dollars ($20,000,000.00) (exclusive of the value of such shares held by its subsidiaries, senior executives, directors and beneficial shareholders owning more than ten percent (10%) of such shares).

(2) The applicability of subsection (b)(1) shall be determined as of:

(i) The record date fixed to determine the shareholders entitled to receive notice of, and to vote at, the meeting of shareholders to act upon the corporate action requiring appraisal rights; or

(ii) The day before the effective date of such corporate action if there is no meeting of shareholders.

(3) Subsection (b)(1) shall not be applicable and appraisal rights shall be available pursuant to subsection (a) for the holders of any class or series of shares who are required by the terms of the corporate action requiring appraisal rights to accept for such shares anything other than cash or shares of any class or any series of shares of any corporation, or any other proprietary interest of any other entity, that satisfies the standards set forth in subsection (b)(1) at the time the corporate action becomes effective.

(4) Subsection (b)(1) shall not be applicable and appraisal rights shall be available pursuant to subsection (a) for the holders of any class or series of shares where:

(i) Any of the shares or assets of the corporation are being acquired or converted, whether by merger, share exchange or otherwise, pursuant to the corporate action by a person, or by an affiliate of a person, who:

(A) Is, or at any time in the one-year period immediately preceding approval by the board of directors of the corporate action requiring appraisal rights was, the beneficial owner of twenty percent (20%) or more of the voting power of the corporation, excluding any shares acquired pursuant to an offer for all shares having voting power if such offer was made within one (1) year prior to the corporate action requiring appraisal rights for consideration of the same kind and of a value equal to or less than that paid in connection with the corporate action; or

(B) Directly or indirectly has, or at any time in the one-year period immediately preceding approval by the board of directors of the corporation of the corporate action requiring appraisal rights had, the power, contractually or otherwise, to cause the appointment or election of twenty-five percent (25%) or more of the directors to the board of directors of the corporation; or

(ii) Any of the shares or assets of the corporation are being acquired or converted, whether by merger, share exchange or otherwise, pursuant to such corporate action by a person, or by an affiliate of a person, who is, or at any time in the one-year period immediately preceding approval by the board of directors of the corporate action requiring appraisal rights was, a senior executive or director of the corporation or a senior executive of any affiliate thereof, and that senior executive or director will receive, as a result of the corporate action, a financial benefit not generally available to other shareholders as such, other than:

(A) Employment, consulting, retirement or similar benefits established separately and not as part of or in contemplation of the corporate action; or

(B) Employment, consulting, retirement or similar benefits established in contemplation of, or as part of, the corporate action that are not more favorable than those existing before the corporate action or, if more favorable, that have been approved on behalf of the corporation in the same manner as is provided in Section 79-4-8.62; or

(C) In the case of a director of the corporation who will, in the corporate action, become a director of the acquiring entity in the corporate action or one (1) of its affiliates, rights and benefits as a director that are provided on the same basis as those afforded by the acquiring entity generally to other directors of such entity or such affiliate.

(5) For the purposes of paragraph (4) only, the term "beneficial owner" means any person who, directly or indirectly, through any contract, arrangement, or understanding, other than a revocable proxy, has or shares the power to vote, or to direct the voting of, shares, provided that a member of a national securities exchange shall not be deemed to be a beneficial owner of securities held directly or indirectly by it on behalf of another person solely because such member is the record holder of such securities if the member is precluded by the rules of such exchange from voting without instruction on contested matters or matters that may affect substantially the rights or privileges of the holders of the securities to be voted. When two (2) or more persons agree to act together for the purpose of voting their shares of the corporation, each member of the group formed thereby shall be deemed to have acquired beneficial ownership, as of the date of such agreement, of all voting shares of the corporation beneficially owned by any member of the group.

(c) Notwithstanding any other provision of Section 79-4-13.02, the articles of incorporation as originally filed or any amendment thereto may limit or eliminate appraisal rights for any class or series of preferred shares, but any such limitation or elimination contained in an amendment to the articles of incorporation that limits or eliminates appraisal rights for any of such shares that are outstanding immediately prior to the effective date of such amendment or that the corporation is or may be required to issue or sell thereafter pursuant to any conversion, exchange or to other right existing immediately before the effective date of such amendment shall not apply to any corporate action that becomes effective within one (1) year of that date if such action would otherwise afford appraisal rights.

(d) A shareholder entitled to appraisal rights under this article may not challenge a completed corporate action for which appraisal rights are available unless such corporate action:

(1) Was not effectuated in accordance with the applicable provisions of articles 10, 11 or 12 or the corporation's articles of incorporation, bylaws or board of directors' resolution authorizing the corporate action; or

(2) Was procured as a result of fraud or material misrepresentation.

SECTION 30. Section 79-4-13.03, Mississippi Code of 1972, is amended as follows:

79-4-13.03. (a) A record shareholder may assert appraisal rights as to fewer than all the shares registered in the record shareholder's name but owned by a beneficial shareholder only if the record shareholder objects with respect to all shares of the class or series owned by the beneficial shareholder and notifies the corporation in writing of the name and address of each beneficial shareholder on whose behalf appraisal rights are being asserted. The rights of a record shareholder who asserts appraisal rights for only part of the shares held of record in the record shareholder's name under this subsection shall be determined as if the shares as to which the record shareholder objects and the record shareholder's other shares were registered in the names of different record shareholders.

(b) A beneficial shareholder may assert appraisal rights as to shares of any class or series held on * * * behalf of the shareholder only if such shareholder:

(1) * * * Submits to the corporation the record shareholder's written consent to the assertion of such rights no later than the date referred to in Section 79-4-13.22(b)(2)(ii); and

(2) * * * Does so with respect to all shares of the class or series that are beneficially owned by the beneficial shareholder * * *.

SECTION 31. Section 79-4-13.20, Mississippi Code of 1972, is amended as follows:

79-4-13.20. (a) If proposed corporate action described in Section 79-4-13.02(a) is to be submitted to a vote at a shareholders' meeting, the meeting notice must state that the corporation has concluded that shareholders are, are not or may be entitled to assert appraisal rights under this article. If the corporation concludes that appraisal rights are or may be available, a copy of this article must accompany the meeting notice sent to those record shareholders entitled to exercise appraisal rights.

(b) In a merger pursuant to Section 79-4-11.05 * * *, the parent corporation must notify in writing all record shareholders of the subsidiary who are entitled to assert appraisal rights that the corporate action became effective. Such notice must be sent within ten (10) days after the corporate action became effective and include the materials described in Section 79-4-13.22.

SECTION 32. Section 79-4-13.21, Mississippi Code of 1972, is amended as follows:

79-4-13.21. (a) If proposed corporate action requiring appraisal rights under Section 79-4-13.02 is submitted to a vote at a shareholders' meeting, a shareholder who wishes to assert appraisal rights with respect to any class or series of shares:

(1) Must deliver to the corporation before the vote is taken written notice of the shareholder's intent to demand payment * * * if the proposed action is effectuated; and

(2) Must not vote, or cause or permit to be voted, any shares of such class or series in favor of the proposed action.

(b) A shareholder who does not satisfy the requirement of subsection (a) is not entitled to payment * * * under this article.

SECTION 33. Section 79-4-13.22, Mississippi Code of 1972, is amended as follows:

79-4-13.22. (a) If proposed corporate action requiring appraisal rights under Section 79-4-13.02(a) becomes effective, the corporation must deliver a written appraisal notice and form required by subsection (b)(1) to all shareholders who satisfied the requirements of Section 79-4-13.21. In the case of a merger under Section 79-4-11.05, the parent must deliver a written appraisal notice and form to all record shareholders who may be entitled to assert appraisal rights.

(b) The appraisal notice must be sent no earlier than the date the corporate action became effective and no later than ten (10) days after such date and must:

(1) Supply a form * * * that specifies the date of the first announcement to * * * shareholders of the principal terms of the proposed corporate action and requires * * * the shareholder asserting appraisal rights to certify (i) whether or not * * * beneficial ownership of those shares for which appraisal rights are asserted was acquired before that date, and (ii) that the shareholder did not vote for the transaction;

(2) State:

(i) Where the form must be sent and where * * * certificates for certificated shares must be deposited and the date by which those certificates must be deposited, which date may not be earlier that the date for receiving the required form under subsection (2)(ii);

(ii) * * * A date by which the corporation must receive the form, which date may not be fewer than forty (40) nor more that sixty (60) days after the date the subsection (a) appraisal notice and form are sent, and state that the shareholder shall have waived the right to demand appraisal with respect to the shares unless the form is received by the corporation by such specified date; * * *

(iii) The corporation's estimate of the fair value of the shares;

(iv) That, if requested in writing, the corporation will provide, to the shareholder so requesting, within ten (10) days after the date specified in subsection (2)(ii) the number of shareholders who return the forms by the specified date and the total number of shares owned by them; and

(v) The date by which the notice to withdraw under Section 79-4-13.23 must be received, which date must be within twenty (20) days after the date specified in subsection (2)(ii); and

(3) Be accompanied by a copy of this article.

SECTION 34. Section 79-4-13.23, Mississippi Code of 1972, is amended as follows:

79-4-13.23. (a) A shareholder who receives notice pursuant to Section 79-4-13.22 and who wishes to exercise appraisal rights must * * * certify on the form sent by the corporation whether the beneficial owner of such shares acquired beneficial ownership of the shares before the date required to be set forth in the * * * notice pursuant to Section 79-4-13.22(b)(1). If a shareholder fails to make this certification, the corporation may elect to treat the shareholder's shares as after-acquired shares under Section 79-4-13.25. In addition, a shareholder who wishes to exercise appraisal rights must execute and return the form and, in the case of certificated shares, * * * deposit the shareholder's certificates in accordance with the terms of the notice by the date referred to in the notice pursuant to Section 79-4-13.22(b)(2)(ii). Once a shareholder deposits that shareholder's certificates or, in the case of uncertificated shares, returns the executed forms, that shareholder loses all rights as a shareholder, unless the shareholder withdraws pursuant to subsection (b).

(b) A shareholder who has complied with subsection (a) may nevertheless decline to exercise appraisal rights and withdraw from the appraisal process by so notifying the corporation in writing by the date set forth in the appraisal notice pursuant to Section 79-4-13.22(b)(2)(v). A shareholder who fails to so withdraw from the appraisal process may not thereafter withdraw without the corporation's written consent.

(c) A shareholder who does not execute and return the form and, in the case of certificated shares, deposit that shareholder's share certificates where required, each by the date set forth in the * * * notice described in Section 79-4-13.22(b), shall not be entitled to payment * * * under this article.

SECTION 35. Section 79-4-13.24, Mississippi Code of 1972, is amended as follows:

79-4-13.24. (a) Except as provided in Section 79-4-13.25, within thirty (30) days after the form required by Section 79-4-13.22(b)(2)(ii) is due, the corporation shall pay in cash to those shareholders who complied with Section 79-4-13.23(a) the amount the corporation estimates to be the fair value of their shares, plus interest.

(b) The payment to each shareholder pursuant to subsection (a) must be accompanied by:

(1) Financial statements of the corporation that issued the shares to be appraised, consisting of a balance sheet as of the end of a fiscal year ending not more than sixteen (16) months before the date of payment, an income statement for that year, a statement of changes in shareholders' equity for that year, and the latest available interim financial statements, if any;

(2) A statement of the corporation's estimate of the fair value of the shares, which estimate must equal or exceed the corporation's estimate given pursuant to Section 79-4-13.22(b)(2)(iii); and

(3) A statement that shareholders described in subsection (a) have the right to demand further payment under Section 79-4-13.26 and that if any such shareholder does not do so within the time period specified therein, such shareholder shall be deemed to have accepted such payment in full satisfaction of the corporation's obligations under this chapter.

SECTION 36. Section 79-4-13.25, Mississippi Code of 1972, is amended as follows:

79-4-13.25. (a) A corporation may elect to withhold payment required by Section 79-4-13.24 from any shareholder who did not certify that beneficial ownership of all of the shareholder's shares for which appraisal rights are asserted was acquired before the date set forth in the appraisal notice sent pursuant to Section 79-4-13.22(b)(1).

(b) If the corporation elected to withhold payment under subsection (a), it must, within thirty (30) days after the form required by Section 79-4-13.22(b)(2)(ii) is due, notify all shareholders who are described in subsection (a):

(1) Of the information required by Section 79-4-13.24(b)(1);

(2) Of the corporation's estimate of fair value pursuant to Section 79-4-13.24(b)(2);

(3) That they may accept the corporation's estimate of fair value, plus interest, in full satisfaction of their demands or demand appraisal under Section 79-4-13.26;

(4) That those shareholders who wish to accept such offer must so notify the corporation of their acceptance of the corporation's offer within thirty (30) days after receiving the offer; and

(5) That those shareholders who do not satisfy the requirements for demanding appraisal under Section 79-4-13.26 shall be deemed to have accepted the corporation's offer.

(c) Within ten (10) days after receiving the shareholder's acceptance pursuant to subsection (b), the corporation must pay in cash the amount it offered under subsection (b)(2) to each shareholder who agreed to accept the corporation's offer in full satisfaction of the shareholder's demand.

(d) Within forty (40) days after sending the notice described in subsection (b), the corporation must pay in cash the amount it offered to pay under subsection (b)(2) to each shareholder described in subsection (b)(5).

SECTION 37. Section 79-4-13.26, Mississippi Code of 1972, is amended as follows:

79-4-13.26. (a) A shareholder paid pursuant to Section 79-4-13.24 who is dissatisfied with the amount of the payment must notify the corporation in writing of that shareholder's estimate of the fair value of the shares and demand payment of that estimate plus interest (less any payment under Section 79-4-13.24). A shareholder offered payment under Section 79-4-13.25 who is dissatisfied with that offer must reject the offer and demand payment of the shareholder's stated estimate of the fair value of the shares plus interest.

(b) A shareholder who fails to notify the corporation in writing of that shareholder's demand to be paid the shareholder's stated estimate of the fair value plus interest under subsection (a) within thirty (30) days after receiving the corporation's payment or offer of payment under Section 79-4-13.24 or Section 79-4-13.25, respectively, waives the right to demand payment under this section and shall be entitled only to the payment made or offered pursuant to those respective sections.

SECTION 38. Section 79-4-13.30, Mississippi Code of 1972, is amended as follows:

79-4-13.30. (a) If a shareholder makes demand for payment under Section 79-4-13.26 which remains unsettled, the corporation shall commence a proceeding within sixty (60) days after receiving the payment demand and petition the court to determine the fair value of the shares and accrued interest. If the corporation does not commence the proceeding within the 60-day period, it shall pay in cash to each shareholder the amount the shareholder demanded pursuant to Section 79-4-13.26 plus interest.

(b) The corporation shall commence the proceeding in the appropriate court of the county where the corporation's principal office (or, if none * * *, its registered office) in this state is located. If the corporation is a foreign corporation without a registered office in this state, it shall commence the proceeding in the county in this state where the principal office or registered office of the domestic corporation merged with * * * the foreign corporation was located at the time of the transaction.

(c) The corporation shall make all shareholders (whether or not residents of this state) whose demands remain unsettled parties to the proceeding as in an action against their shares, and all parties must be served with a copy of the petition. Nonresidents may be served by registered or certified mail or by publication as provided by law.

(d) The jurisdiction of the court in which the proceeding is commenced under subsection (b) is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers shall have the powers described in the order appointing them, or in any amendment to it. The shareholders demanding appraisal rights are entitled to the same discovery rights as parties in other civil proceedings. There shall be no right to a jury trial.

(e) Each shareholder made a party to the proceeding is entitled to judgment (i) for the amount, if any, by which the court finds the fair value of the shareholder's shares, plus interest, exceeds the amount paid by the corporation to the shareholder for such shares or (ii) for the fair value, plus * * * interest, of the shareholder's shares for which the corporation elected to withhold payment under Section 79-4-13.25.

SECTION 39. Section 79-4-13.31, Mississippi Code of 1972, is amended as follows:

79-4-13.31. (a) The court in an appraisal proceeding commenced under Section 79-4-13.30 shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court. The court shall assess the costs against the corporation, except that the court may assess costs against all or some of the shareholders demanding appraisal, in amounts the court finds equitable, to the extent the court finds such shareholders acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by this article.

(b) The court in an appraisal proceeding may also assess the fees and expenses of counsel and experts for the respective parties, in amounts the court finds equitable:

(1) Against the corporation and in favor of any or all shareholders demanding appraisal if the court finds the corporation did not substantially comply with the requirements of Sections 79-4-13.20, 79-4-13.22, 79-4-13.24 or 79-4-13.25; or

(2) Against either the corporation or a shareholder demanding appraisal, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by this article.

(c) If the court in an appraisal proceeding finds that the services of counsel for any shareholder were of substantial benefit to other shareholders similarly situated, and that the fees for those services should not be assessed against the corporation, the court may award to such counsel reasonable fees to be paid out of the amounts awarded the shareholders who were benefited.

(d) To the extent the corporation fails to make a required payment pursuant to Sections 79-4-13.24, 79-4-13.25 or 79-4-13.26, the shareholder may sue directly for the amount owed and, to the extent successful, shall be entitled to recover from the corporation all costs and expenses of the suit, including counsel fees.

SECTION 40. Section 79-14-101, Mississippi Code of 1972, is amended as follows:

79-14-101. As used in this chapter, unless the context otherwise requires:

(1) "Certificate of limited partnership" means the certificate referred to in Section 79-14-201, and the certificate as amended or restated.

(2) "Contribution" means any cash, property, services rendered, or a promissory note or other obligation to contribute cash or property or to perform services, which a partner contributes to a limited partnership in his capacity as a partner.

(3) "Deliver" or "delivery" means any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery, and electronic transmission. If delivery is to the Secretary of State, delivery may be made by electronic transmission if, to the extent, and in the manner permitted by the Secretary of State.

(4) "Electronic transmission" or "electronically transmitted" means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval, and reproduction of information by the recipient.

(5) "Entity" means any association or legal entity organized to conduct business, including, without limitation, limited partnerships, for profit and nonprofit corporations, general partnerships, limited liability partnerships, limited liability companies, joint ventures, joint stock companies and business trusts.

(6) "Event of withdrawal of a general partner" means an event that causes a person to cease to be a general partner as provided in Section 79-14-402.

(7) "Foreign limited partnership" means a partnership formed under the laws of another state or under the laws of a foreign country or foreign jurisdiction and having as partners one or more general partners and one or more limited partners (or their equivalence under any name).

(8) "General partner" means a person who has been admitted to a limited partnership as a general partner in accordance with the partnership agreement or the provisions of this chapter and named in the certificate of limited partnership as a general partner.

(9) "Limited partner" means a person who has been admitted to a limited partnership as a limited partner in accordance with the partnership agreement.

(10) "Limited partnership" and "domestic limited partnership" mean a partnership formed by two (2) or more persons under the laws of this state and having one or more general partners and one or more limited partners.

(11) "Organizational documents" means the basic document or documents that create or determine the internal governance of an entity.

(12) "Partner" means a limited or general partner.

(13) "Partnership agreement" means any valid agreement, written or oral, of the partners as to the affairs of a limited partnership and the conduct of its business.

(14) "Partnership interest" means a partner's share of the profits and losses of a limited partnership and the right to receive distributions of limited partnership assets.

(15) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited partnership, association, joint venture, government, governmental subdivision or agency, any other legal or commercial entity, nominee or any individual or entity in any representative capacity.

(16) "Sign" or "signature" includes any manual, facsimile, conformed or electronic signature.

(17) "State" means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

SECTION 41. Section 79-14-211, Mississippi Code of 1972, is amended as follows:

79-14-211. (a) Unless otherwise provided in the certificate of limited partnership or partnership agreement, one or more domestic limited partnerships may merge or consolidate with a domestic or foreign entity pursuant to a plan of merger or consolidation.

(b) A domestic or foreign entity may be a party to the merger or consolidation, or may be created by the terms of the plan of merger or consolidation, only if:

(1) The merger or consolidation is permitted by the laws under which the entity is organized or by which it is governed; and

(2) In effecting the merger or consolidation, the entity complies with such laws and with its organizational documents.

(c) A domestic limited partnership that is not the surviving or resulting entity in the merger or consolidation shall file a certificate of cancellation, which shall have an effective date not later than the effective date of the merger or consolidation.

(d) If following a merger or consolidation of one or more domestic limited partnerships and one or more foreign entities, the surviving or resulting entity is a foreign entity, there shall be attached to the certificate of cancellation filed pursuant to Section 79-14-203 for each such domestic limited partnership a certificate executed by the surviving or resulting foreign entity, stating that the surviving or resulting foreign entity agrees that it may be served with process in the State of Mississippi in any action, suit or proceeding for the enforcement of any obligation of such domestic limited partnership, irrevocably appointing the Secretary of State as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which a copy of such process shall be mailed to it by the Secretary of State. In the event of service hereunder upon the Secretary of State, the plaintiff in any such action, suit or proceeding shall furnish the Secretary of State with the address specified in the certificate provided for in this section and any other address which the plaintiff may elect to furnish, and the Secretary of State shall notify the surviving or resulting foreign entity at all such addresses furnished by the plaintiff.

(e) Upon the effective date of any merger or consolidation effected under this section, which said effective date shall not be earlier than when any certificate of cancellation required by subsection (b) of this section shall have become effective for all purposes of the laws of the State of Mississippi, all of the rights, privileges and powers of each of the foreign or domestic entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of said foreign or domestic entities, as well as all other things and causes of action belonging to each of such foreign or domestic entities shall be vested in the surviving or resulting foreign or domestic entity, and shall thereafter be the property of the surviving or resulting foreign or domestic entity as they were of each of the foreign or domestic entities that have merged or consolidated, and the title to any real property vested by deed or otherwise, under the laws of the State of Mississippi, in any of such foreign or domestic entities, shall not revert or be in any way impaired by reason of this chapter, but all rights of creditors and all liens upon any property of any of said foreign or domestic entities shall be preserved unimpaired, and all debts, liabilities and duties of each of the foreign or domestic entities that have merged or consolidated shall thenceforth attach to the surviving or resulting foreign or domestic entity, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.

SECTION 42. Section 79-29-103, Mississippi Code of 1972, is amended as follows:

79-29-103. As used in this chapter, unless the context otherwise requires:

(a) "Certificate of formation" means the certificate referred to in Section 79-29-201, and the certificate as amended or restated.

(b) "Contribution" means any cash, property, services rendered, or a promissory note or other obligation to contribute cash or property or to perform services, which a person contributes to a limited liability company in his capacity as a member.

(c) "Deliver" or "delivery" means any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery and electronic transmission. If delivery is to the Secretary of State, delivery may be made by electronic transmission, if, to the extent, and in the manner permitted by the Secretary of State.

(d) "Derivative proceeding" means a civil suit in the right of a limited liability company or, to the extent provided in Article 10 of this chapter, in the right of a foreign limited liability company.

(e) "Electronic transmission" or "electronically transmitted" means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient.

(f) "Entity" means any association or legal entity organized to conduct business, including, without limitation, for profit and nonprofit corporations, limited partnerships, general partnerships, limited liability partnerships, limited liability companies, joint ventures, joint stock companies, and business trusts.

(g) "Event of dissociation" means an event that causes a person to cease to be a member as provided in Section 79-29-307.

(h) "Foreign limited liability company" means an entity that is an unincorporated association organized under laws other than the laws of this state that affords to each of its members, pursuant to the laws under which it is organized, limited liability with respect to liabilities of the entity.

(i) "Interests" means the proprietary interests in an entity.

(j) "Limited liability company" and "domestic limited liability company" mean an entity having one or more members that is an unincorporated association that is formed and existing under this chapter.

(k) "Limited liability company agreement" means an agreement of the members as to the affairs of a limited liability company and the conduct of its business.

(l) "Limited liability company interest" means a member's share of the profits and losses of a limited liability company and the right to receive distributions of limited liability company assets.

(m) "Manager" or "managers" means a person or persons who are named in, or selected or designated pursuant to, the certificate of formation or limited liability company agreement to manage the limited liability company to the extent and as provided in the certificate of formation or limited liability company agreement.

(n) "Member" means a person that has been admitted to a limited liability company as provided in Section 79-29-301 or, in the case of a foreign limited liability company, in accordance with the laws under which the foreign limited liability company is organized, and that has not dissociated from the limited liability company.

(o) "Merger" means a business combination pursuant to Section 79-29-209.

(p) "Organizational documents" means the basic document or documents that create, or determine the internal governance of, an entity.

(q) "Person" means an individual, corporation, nonprofit corporation, business trust, estate, trust, partnership, limited partnership, association, joint venture, limited liability company, government, governmental subdivision or agency, any other legal or commercial entity, nominee or any individual or entity in any representative capacity.

(r) "Professional limited liability company" is a limited liability company formed and existing under Article 9 of this chapter.

(s) "Sign" or "signature" includes any manual, facsimile, conformed or electronic signature.

(t) "Survivor" in a merger means the entity into which one or more entities are merged. A survivor of a merger may preexist the merger or be created by the merger.

SECTION 43. Section 79-29-202, Mississippi Code of 1972, is amended as follows:

79-29-202. (1) A certificate of formation is amended by delivering a certificate of amendment thereto to the office of the Secretary of State for filing. The certificate shall set forth:

(a) The name of the limited liability company;

(b) The future effective date of the amendment, which must be a date certain not later than the ninetieth day after the date it is filed by the Secretary of State, unless it is effective upon the filing of the certificate of amendment; and

(c) The amendment to the certificate.

(2) A manager or, if there is no manager, any member who becomes aware that any statement in a certificate of formation was false when made or that any arrangements or other facts described have changed, making the certificate inaccurate in any respect, shall promptly amend the certificate.

(3) A certificate of formation may be amended at any time for any other proper purpose.

(4) Except for an amendment required by subsection (2) of this section, unless otherwise provided in the certificate of formation or limited liability company agreement, all members must agree to any amendment of the certificate of formation * * *.

SECTION 44. Section 79-29-209, Mississippi Code of 1972, is amended as follows:

79-29-209. Merger of limited liability company.

(1) Unless otherwise provided in the certificate of formation or limited liability company agreement * * *, one or more domestic limited liability companies may merge with a domestic or foreign entity pursuant to a plan of merger * * *.

(2) A domestic or foreign entity may be a party to the merger, or may be created by the terms of the plan of merger, only if:

(a) The merger is permitted by the laws under which the entity is organized or by which it is governed; and

(b) In effecting the merger, the entity complies with such laws and with its organizational documents.

(3) The plan * * * of merger must include:

(a) The name of each entity that will merge and the name of the entity that will be the survivor of the merger;

(b) The terms and conditions of the * * * merger;

(c) The manner and basis of converting the interests of each merging entity into shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing;

(d) The organizational documents of any entity to be created by the merger, or if a new entity is not to be created by the merger, any amendments to the survivor's organizational documents; and

(e) Any other provisions required by the laws under which any party to the merger is organized or by which it is governed, or by the organizational documents of any such party.

(4) The terms described in subsections (3)(b) and (3)(c) of this section may be made dependent on facts ascertainable outside the plan of merger, provided that those facts are objectively ascertainable. The term "facts": includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the limited liability company.

(5) The plan of merger may also include a provision that the plan may be amended prior to filing the certificate of merger with the Secretary of State, provided that if the members of a domestic limited liability company that is a party to the merger are required or permitted to vote on the plan, the plan must provide that subsequent to approval of the plan by such members the plan may not be amended to:

(a) Change the amount or kind of shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, or other property to be received by the owners of interests in any party to the merger upon conversion of their interests under the plan;

(b) Change the organizational documents of any other entity that will survive or be created as a result of the merger; or

(c) Change any of the other terms or conditions of the plan if the change would adversely affect such members in any material respect.

SECTION 45. The following shall be codified as Section 79-29-210, Mississippi Code of 1972:

79-29-210. Action on a plan of merger. In the case of a limited liability company that is a party to a merger:

(a) Unless otherwise provided in the certificate of formation or limited liability company agreement, the plan of merger must be adopted by the members.

(b) Unless the plan of merger is not required to be approved by the members, the limited liability company must notify each member and each owner of a limited liability company interest, whether or not entitled to vote, of the meeting of members at which the plan is to be submitted for approval. The notice must state that the purpose, or one of the purposes, of the meeting is to consider the plan and must contain or be accompanied by a copy or summary of the plan. If the limited liability company is to be merged into an existing entity, the notice shall also include or be accompanied by a copy or summary of the organizational documents of that entity. If the limited liability company is to be merged into an entity that is to be created pursuant to the merger, the notice shall include or be accompanied by a copy or a summary of the organizational documents of the new entity.

(c) Unless otherwise provided in the certificate of formation or limited liability company agreement, approval of the plan of merger requires the approval of at least a majority of the votes entitled to be cast on the plan, and, if any class or series of interests is entitled to vote as a separate group on the plan of merger, the approval of at least a majority of the votes entitled to be cast on the merger by that voting group.

(d) Unless otherwise provided in the certificate of formation or limited liability company agreement, separate voting by voting groups is required:

(i) On a plan of merger, by each class or series of interests that (A) are to be converted, pursuant to the provisions of the plan of merger, into shares or other securities, interests, obligations, rights to acquire interests or other securities, cash, other property, or any combination of the foregoing, or (B) would have a right to vote as a separate group on a provision in the plan that, if contained in a proposed amendment to the certificate of formation or limited liability company agreement, would require action by separate voting groups under the certificate of formation or limited liability company agreement;

(ii) On a plan of merger, if the voting group is entitled under the certificate of formation or limited liability company agreement, to vote as a voting group to approve a plan of merger.

(e) If as a result of a merger one or more members or owners of a limited liability company interest of a domestic limited liability company would become subject to personal liability for the obligations or liabilities of any entity, approval of the plan of merger shall require the execution, by each such member and owner of a limited liability company interest, of a separate written consent to become subject to such personal liability.

SECTION 46. The following shall be codified as Section 79-29-211, Mississippi Code of 1972:

79-29-211. Certificate of merger. After a plan of merger has been adopted and approved as required by the Mississippi Limited Liability Corporation Act, a certificate of merger shall be executed on behalf of each party to the merger by any manager, if management of the limited liability company is vested in one or more managers, or by a member if management of the limited liability company is reserved to the members. The certificate shall set forth:

(a) The names of the parties to the merger and the date on which the merger occurred or is to be effective;

(b) If the organizational documents of the survivor of a merger are amended, or if a new entity is created as a result of a merger, the amendments to the organizational documents of the survivor or the organizational documents of the new entity;

(c) A statement that the plan was duly approved by the members and, if voting by any separate voting group was required, by each such separate voting group, in the manner required by the Mississippi Limited Liability Corporation Act and the certificate of formation and limited liability company agreement;

(d) As to each entity that was a party to the merger, a statement that the plan and the performance of its terms were duly authorized by all action required by the laws under which the entity is organized, or by which it is governed, and by its organizational documents;

(e) The future effective date of the merger, which shall be a date or time certain not later than the ninetieth day after the date it is filed, if it is not to be effective upon the filing of the certificate of merger; and

(f) The plan of merger.

SECTION 47. The following shall be codified as Section 79-29-212, Mississippi Code of 1972:

79-29-212. Effect of merger.

(1) When a merger becomes effective:

(a) The entity that is designated in the plan of merger as the survivor continues or comes into existence, as the case may be;

(b) The separate existence of every entity that is merged into the survivor ceases;

(c) All property owned by, and every contract right possessed by, each entity that merges into the survivor is vested in the survivor without reversion or impairment;

(d) All liabilities of each entity that is merged into the survivor are vested in the survivor;

(e) The name of the survivor may, but need not be, substituted in any pending proceeding for the name of any party to the merger whose separate existence ceased in the merger;

(f) The organizational documents of the survivor are amended to the extent provided in the plan of merger;

(g) The organizational documents of a survivor that is created by the merger become effective; and

(h) The interests in an entity that is a party to a merger that are to be converted under the plan of merger into shares, interests, obligations, rights to acquire securities, other securities, cash, other property, or any combination of the foregoing, are converted, and the former holders of such interests are entitled only to the rights provided to them in the plan of merger or to any rights they may have under Section 79-29-214.

(2) Any member or owner of a limited liability company interest of a domestic limited liability company that is a party to a merger who, prior to the merger, was liable for the liabilities or obligations of such limited liability company, shall not be released from such liabilities or obligations by reason of the merger.

(3) Upon a merger becoming effective, a foreign entity that is the survivor of the merger is deemed to:

(a) Appoint the Secretary of State as its agent for service of process in a proceeding to enforce the rights of the members and owners of a limited liability company interest of each domestic limited liability company that is a party to the merger who exercise appraisal rights; and

(b) Agree that it will promptly pay the amount, if any, to which such members and owners of a limited liability company interest are entitled under Section 79-29-214, Mississippi Code of 1972.

SECTION 48. The following shall be codified as Section 79-29-213, Mississippi Code of 1972:

79-29-213. Abandonment of a merger.

(1) Unless otherwise provided in a plan of merger or in the laws under which a domestic or foreign entity that is a party to a merger is organized or by which it is governed, after the plan has been adopted and approved as required by the Mississippi Limited Liability Corporation Act, and at any time before the merger has become effective, it may be abandoned by any party thereto without action by the party's owners of interests, in accordance with any procedures set forth in the plan of merger or, if no such procedures are set forth in the plan, in the manner determined by the entity, subject to any contractual rights of other parties to the merger.

(2) If a merger is abandoned under subsection (1) after a certificate of merger has been filed with the Secretary of State but before the merger has become effective, a statement that the merger has been abandoned in accordance with this subsection, executed on behalf of a party to the merger by any manager, if management of the limited liability company is vested in one or more managers, or by a member if management of the limited liability company is reserved to the members, shall be delivered to the Secretary of State for filing prior to the effective date of the merger. Upon filing, the statement shall take effect and the merger shall be deemed abandoned and shall not become effective.

SECTION 49. The following shall be codified as Section 79-29-214, Mississippi Code of 1972:

79-29-214. Appraisal rights.

(1) Definitions. In this section:

(a) "Beneficial holder" means a person who is the beneficial owner of interests held in a voting trust or by a nominee on the beneficial owner's behalf.

(i) Immediately before the effectuation of the action to which the member or owner of a limited liability company interest objects;

(ii) Using customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction requiring appraisal; and

(iii) Without discounting for lack of marketability or minority status.

(c) "Record holder" means the person in whose name interests are registered in the records of the entity or the beneficial owner of interests to the extent of the rights granted by a nominee certificate on file with the entity.

(d) "Holder" means both a record holder and a beneficial holder.

(i) Consummation of a merger to which the limited liability company is a party;

(ii) Consummation of a sale, lease, exchange, or other disposition of assets if the disposition would leave the limited liability company without a significant continuing business activity. If a limited liability company retains a business activity that represented at least twenty-five percent (25%) of total assets at the end of the most recently completed fiscal year, and twenty-five percent (25%) of either income from continuing operations or revenues from continuing operations for that fiscal year, in each case of the limited liability company and its subsidiaries on a consolidated basis, the limited liability company will conclusively be deemed to have retained a significant continuing business activity;

(iii) Any other action to the extent provided by the certificate of formation or limited liability company agreement.

(b) A member or owner of a limited liability company interest entitled to appraisal rights under this section may not challenge a completed action for which appraisal rights are available unless such action:

(ii) Was procured as a result of fraud or material misrepresentation.

(3) Notice of appraisal rights. If a proposed action described in subsection (2) of this section is to be submitted to a vote, the meeting notice must state that the limited liability company has concluded that members and owners of limited liability company interests are entitled to assert appraisal rights under this section and a copy of this section must accompany the meeting notice sent to the members and owners of limited liability company interests.

(4) Notice of intent to demand payment. (a) If a proposed action requiring appraisal rights under subsection (2)(a) of this section is submitted to a vote, members and owners of limited liability company interests who wish to assert appraisal rights with respect to any class or series of interests:

(b) A member or owner of a limited liability company interest who does not satisfy the requirements of subsection (4)(a) of this section is not entitled to payment under this section.

(5) Appraisal notice and form. (a) If a proposed action requiring appraisal rights under subsection (2) of this section becomes effective, the limited liability company must deliver a written appraisal notice and form required by this subsection (5) to all members and owners of limited liability company interests who satisfied the requirements of subsection (4) of this section.

(b) The appraisal notice must be sent no earlier than the date the action became effective and no later than ten (10) days after such date and must:

(i) Supply a form that specifies the date of the first announcement to members and owners of limited liability company interests of the principal terms of the proposed action and requires the person asserting appraisal rights to certify (A) whether beneficial ownership of those interests for which appraisal rights are asserted was acquired before that date, and (B) that the person did not vote for the transaction;

(ii) State:

(A) Where the form must be sent and where certificates for certificated interests must be deposited and the date by which those certificates must be deposited, which date may not be earlier than the date for receiving the required form under subsection (5)(b)(ii)(B) of this section;

(B) A date by which the limited liability company must receive the form which date may not be fewer than forty (40) nor more than sixty (60) days after the date the subsection (5)(a) appraisal notice and form are sent, and state that the person shall have waived the right to demand appraisal with respect to the interests unless the form is received by the limited liability company by such specified date;

(D) That, if requested in writing, the limited liability company will provide to the person so requesting, within ten (10) days after the date specified in subsection (5)(b)(ii)(B), the number of persons who return the forms by the specified date and the aggregate interests owned by them; and

(E) The date by which the notice to withdraw under subsection (6) must be received, which date must be within twenty (20) days after the date specified in subsection (5)(b)(ii)(B) of this section; and

(c) Be accompanied by a copy of this section.

(7) Payment. (a) Except as provided in subsection (6), within thirty (30) days after the form required by subsection (5)(b)(ii)(B) of this section is due, the limited liability company shall pay in cash to those persons who complied with subsection (6)(a) of this section the amount the limited liability company estimates to be the fair value of their interests, plus interest at the legal rate.

(b) The payment to each person pursuant to subsection (7)(a) of this section must be accompanied by:

(i) Financial statements of the limited liability company that issued the interests to be appraised, consisting of a balance sheet as of the end of a fiscal year ending not more than sixteen (16) months before the date of payment, an income statement for that year, a statement of changes in equity for that year, and the latest available interim financial statements, if any;

(b) If the limited liability company elected to withhold payment under subsection (8)(a) of this section, it must, within thirty (30) days after the form required by subsection (5)(b)(ii)(B) of this section is due, notify all persons who are described in subsection (8)(a) of this section:

(i) Of the information required by subsection (7)(b)(i) of this section;

(d) Within forty (40) days after sending the notice described in subsection (8)(b) of this section, the limited liability company must pay in cash the amount it offered to pay under subsection (7)(b) of this section to each person described in subsection (8)(b)(ii) of this section.

(10) Court action. (a) If a person makes demand for payment under subsection (9) of this section which remains unsettled, the limited liability company shall commence a proceeding within sixty (60) days after receiving the payment demand and petition the court to determine the fair value of the interests and accrued interest at the legal rate. If the limited liability company does not commence the proceeding within the sixty (60) day period, it shall pay in cash to each such person the amount the person demanded pursuant to subsection (9)(a) of this section plus interest at the legal rate.

(c) The limited liability company shall make all persons whose demands remain unsettled, whether or not residents of this state, parties to the proceeding as in an action against their interests, and all parties must be served with a copy of the complaint. Nonresidents may be served as otherwise provided by law.

(d) The jurisdiction of the court in which the proceeding is commenced under subsection (10)(b) of this section is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers shall have the powers described in the order appointing them, or in any amendment to it. The persons demanding appraisal rights are entitled to the same discovery rights as parties in other civil proceedings. There shall be no right to a jury trial.

(11) Court costs and counsel fees. (a) The court in an appraisal proceeding commenced under subsection (10) of this section shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court. The court shall assess the costs against the limited liability company, except that the court may assess costs against all or some of the persons demanding appraisal, in amounts the court finds equitable, to the extent the court finds such persons acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this subsection.

(b) The court in an appraisal proceeding may also assess the fees and expenses of counsel and experts for the respective parties, in amounts the court finds equitable:

(i) Against the limited liability company and in favor of any or all persons demanding appraisal if the court finds the limited liability company did not substantially comply with the requirements of subsections (3), (5), (7) or (8) of this section; or

(ii) Against either the limited liability company or a person demanding appraisal, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this subsection.

(c) If the court in an appraisal proceeding finds that the services of counsel for any member or owner of a limited liability company interest were of substantial benefit to other persons similarly situated, and that the fees for those services should not be assessed against the limited liability company, the court may award to such counsel reasonable fees to be paid out of the amounts awarded the persons who were benefited.

(d) To the extent the limited liability company fails to make a required payment pursuant to subsections (7), (8) or (9) of this section, the person may sue directly for the amount owed and, to the extent successful, shall be entitled to recover from the limited liability company all costs and expenses of the suit, including counsel fees.

SECTION 50. This act shall take effect and be in force from and after July 1, 2000.