Georgia Code, Volume 12, 2012 Supplement

2012·16.8 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2012 Supplement
Including Acts ofthe 2012 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial Staff ofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume
12
2003 Edition
Title 14. Corporations, Partnerships, and Associations
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
Main Set
LexisNexis®
Charlottesville, Virginia
Copyright © 2004—2012
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-0-8205-9822-2
5013229
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2012 Regular Session ofthe General Assembly.
Annotations of Judicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 30, 2012. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgia Annotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 30, 2012.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal ofInternational and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal ofIntellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution ofGeorgia.
An updated version of Table Fifteen which reflects legislation
through the 2012 Regular Session ofthe General Assembly.
iii
Indices:
A cumulative replacement index to laws codified in the 2012 supple-
ment pamphlets and in the bound volumes ofthe Code.
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IV
TITLE 14
CORPORATIONS, PARTNERSHIPS, AND
ASSOCIATIONS
Chap.
2. Business Corporations, 14-2-101 through 14-2-1703.
3. Nonprofit Corporations, 14-3-101 through 14-3-1703.
4. Secretary of State Corporations, 14-4-1 through 14-4-183.
5. Miscellaneous Provisions Relating to Corporations, 14-5-1
through 14-5-51.
8. Partnerships, 14-8-1 through 14-8-64.
9. Revised Uniform Limited Partnership Act, 14-9-100
through 14-9-1204.
10. Professional Associations, 14-10-1 through 14-10-18.
11. Limited Liability Companies, 14-11-100 through
14-11-1109.
—
Law reviews. For survey article on riod from June 1, 2002 through May 31,
cases in the areas ofcorporate, securities, 2003, see 55 Mercer L. Rev. 55 (2003).
partnership, and banking law for the pe-
CHAPTER
2
BUSINESS CORPORATIONS
Article 1 Sec.
General Provisions 14-2-122. Filing fees and penalties.
Part 1 Part 4
Short Titleand Reservation of Power
1l/~£)jfrfltimNtltltlvd-mUcN!o
Sec.
14-2-104. Effect of order for bank- 14-2-140. Code definitions.
ruptcy relief upon powers 14-2-141. Notice.
and duties ofcorporation.
Article 2
Part 2
Filing Documents Incorporation
14-2-120. Filing requirements. 14-2-205. Organizationofcorporation.
2012 Supp. 1
.
T.14, C.2 CORPORATIONS, PARTNERSHIPS, ETC. T.14, C.2
Sec. Sec.
Article 3 14-2-728. Voting for directors; cumu-
Purposes and Powers lative voting.
14-2-305. Submission of certain mat Article 8
ters to shareholder vote. Directors and Officers
Article 4
Part 1
Name
Board of Directors
14-2-401. Corporate name.
14-2-807. Resignation ofdirectors.
Article 6
14-2-810. Vacancy on board.
Shares and Distributions
Part 2
Part 1
MeetingsandAction of the Board
Shares
14-2-821. Action without meeting.
14-2-602. Terms ofclass or series de-
termined by board of direc- 14-2-823. Waiver ofnotice.
tors.
Part 4
Part 2
Officers
Issuance of Shares
14-2-843. Resignation and removal of
14-2-624. Share options. officers.
Part 3
Part 5
SubsequentAcquisition of Shares by
Indemnification
Shareholders and Corporation
14-2-630. Shareholders' preemptive 14-2-854. Court ordered indemnifica-
rights. tion and advances for ex-
penses.
Part 4 14-2-859. Application ofpart.
Distributions
Article 10
14-2-641. Effect of failure to present
Amendment ofArticles of
securities for redemption,
Incorporation and Bylaws
surrender, cancellation, or
payment.
Part 1
Article 7
Amendment ofArticles of Incorporation
Shareholders
14-2-1003. Amendment by board ofdi-
Part 1 rectors and shareholders.
Meetings 14-2-1008. Amendment pursuant to re-
organization [Repealed]
14-2-702. Special meeting.
14-2-704. Action without meeting. Part 2
14-2-705. Notice ofmeeting.
14-2-706. Waiver ofnotice. Amendment of Bylaws
Part 2 14-2-1020. Amendment by board ofdi-
rectors or shareholders.
Voting
14-2-1021. Bylawincreasingquorumor
14-2-720. Shareholders' list for meet- voting requirement for
ing. shareholders.
2012 Supp.
T.14, C.2 BUSINESS CORPORATIONS T.14, C.2
Article 11 Sec.
Merger and Share Exchange 14-2-1408. Articles ofdissolution.
Part 1 Part 2
Mergerand Share Exchange Administrative Dissolution
Sec. 14-2-1422. Reinstatementfollowingad-
14-2-1101. Merger. ministrative dissolution.
14-2-1102. Share exchange.
14-2-1103. Action on plan. -Part 3
14-2-1104. Merger with subsidiary.
Judicial Dissolution
14-2-1109. Merger with other entities.
14-2-1109.1. Conversion to limited liabil- 14-2-1433. Decree ofdissolution.
ity companyorlimited part-
Part 4
nership.
14-2-1109.2. Election to become corpora- Miscellaneous
tion.
14-2-1109.3. Conversion to foreign lim- 14-2-1440. Deposit ofassetswith Office
ited liability company, for- ofthe State Treasurer.
eign limited partnership, or Article 15
foreigncorporation, require-
Foreign Corporations
ments.
Part 2 Part 1
Fair Price Requirements Certificate ofAuthority
14-2-1110. Definitions. 14-2-1504. Amended certificate of au-
Article 12 thority; conversion of for-
eigncorporationintoforeign
Sale ofAssets
limited liability company or
14-2-1202. Sale of assets requiring foreign limited partnership.
shareholder approval. 14-2-1506. Corporate name of foreign
Article 13 corporation.
Dissenters'Rights Article 16
Part 1 Records and Reports
Right to Dissentand Obtain Payment for
Part 1
Shares
Records
14-2-1302. Right to dissent.
Article 14 14-2-1602. Inspection of records by
shareholders.
Dissolution
Part 2
Part 1
Voluntary Dissolution Reports
14-2-1402. Dissolution by board of di- 14-2-1620. Financial statements for
rectors and shareholders. shareholders.
—
Law reviews. For survey article on 2003, see 55 MercerL. Rev. 55 (2003). For
cases in the areas ofcorporate, securities, article, "2006 Amendments to Georgia's
partnership, and banking law for the pe- Corporate Code and Alternative Entity
riod from June 1, 2002 through May 31, Statutes," see 12 Ga. St. B.J. 12 (2007).
2012 Supp.
T.14, C.2, A.1 CORPORATIONS, PARTNERSHIPS, ETC. 14-2-104
ARTICLE
1
GENERAL PROVISIONS
Part 1
Short Title and Reservation of Power
14-2-101. Short title.
—
Law reviews. For article, "Georgia For article, "The Georgia LLC Act Comes
Condominium Law: Beyond the Condo- of Age," see 16 (No. 1) Ga. St. B.J. 20
miniumAct,"see 13 Ga. St. B.J. 24(2007). (2010).
JUDICIAL DECISIONS
CitedinStephensv. McGarrity,290Ga.
App. 755, 660 S.E.2d 770 (2008).
14-2-104. Effect oforder for bankruptcy reliefupon powers and
duties of corporation.
(a) Any corporation, an order for relief with respect to which has
been entered pursuant to the federal Bankruptcy Code (11 U.S.C.
Section 101, et seq.), may put into effect and carry out any decrees and
orders of the court or judge in such bankruptcy proceeding and may
take any corporate action provided or directed by such decrees and
orders, without further action by its directors or shareholders. Such
power and authority may be exercised, and such corporate action may
be taken, as may be directed by such decrees and orders, by the trustee
or trustees of such corporation appointed or elected in the bankruptcy
proceeding, or a majority thereof, or, ifnone be appointed or elected and
acting, by designated officers ofthe corporation, or by a representative
appointed by the court or judge, with like effect as if exercised and
taken by unanimous action of the directors and shareholders of the
corporation.
(b) Such corporation may, in the mannerprovided in subsection (a) of
this Code section, but without limiting the generality or effect of the
foregoing, alter, amend, or repeal its bylaws; constitute or reconstitute
and classify or reclassify its board ofdirectors, and name, constitute, or
appoint directors and officers in place ofor in addition to all or some of
the directors or officers then in office; amend its articles of incorpora-
tion, and make any change in its shares, or any other amendment,
change, or alteration, or provision, authorized by this chapter; be
dissolved, transfer all or part of its assets, merge or effect any share
exchange in connection with any action taken under this Code section;
change the location ofits registered office, change its registered agent,
and remove or appoint any agent to receive service ofprocess; authorize
4 2012 Supp.
14-2-104 BUSINESS CORPORATIONS 14-2-104
and fix the terms, manner, and conditions of, the issuance of bonds,
debentures, or other obligations, regardless ofwhether convertible into
shares ofany class or series, or bearing warrants or other evidences of
optional rights to purchase or subscribe for shares ofany class or series;
or lease its property and franchises to any corporation, ifpermitted by
law. No shareholder shall have the right to dissent under Article 13 of
this chapter with respect to such shareholder's shares in connection
with any action taken under this Code section. *
(c) Articles or a certificate of any amendment, correction, merger,
share exchange, or dissolution, made by such corporation pursuant to
this Code section, shall be filed with the Secretary of State in accor-
dance with Code Section 14-2-120, and, subject to Code Section
14-2-123 and subsection (c) of Code Section 14-2-124, shall thereupon
become effective in accordance with its terms and the provisions
thereof. Such articles, certificate, or other instrument shall be made,
executed, and acknowledged, as may be directed by such decrees and
orders, bythe trustee ortrustees appointed or elected in the bankruptcy
proceeding, or a majority thereof, or, ifnone be appointed or elected and
acting, by the officers of the corporation, or by a representative
appointed by the court orjudge, and shall certify that provision for the
making of such articles, certificate, or instrument is contained in a
decree or order of a court or judge having jurisdiction of a proceeding
under the federal Bankruptcy Code.
(d) This Code section shall cease to apply to such corporation upon
the entry ofa final decree in the bankruptcy proceeding closingthe case
and discharging the trustee or trustees, ifany; provided, however, that
the closing ofa case and discharge oftrustee or trustees, ifany, will not
affect the validity ofany act previously performed pursuant to subsec-
tion (a), (b), or (c) ofthis Code section.
(e) On filing any articles, certificate, report, or other paper made or
executed pursuant to this Code section, there shall be paid to the
Secretary ofState for the use ofthe state the same fees as are payable
by corporations not in bankruptcy upon the filing of like articles,
certificates, agreements, reports, or other papers. (Code 1981,
§ 14-2-104, enacted by Ga. L. 2006, p. 825, § 1/SB 469.)
—
Effective date. This Code section Amendments to Georgia's Corporate Code
became effective Ju—ly 1, 2006. and Alternative Entity Statutes," see 12
Law reviews. For article, "2006 Ga. St. B.J. 12 (2007).
COMMENT
Note to 2006Amendment
New Code Section 14-2-104, which is based on Section 303 of the General
Corporation Law ofthe State of Delaware, confirms that a corporation in bank-
ruptcy is authorized to effectuate the decrees and orders ofthe court orjudge in
such proceedings and to take anycorporate action provided for or directed bysuch
2012 Supp. 5
14-2-104 CORPORATIONS, PARTNERSHIPS, ETC. 14-2-120
decrees and orders without further action by directors or shareholders. Such
authority may be exercised and such action may be taken, as may be directed in
such orders or decrees, by any trustee appointed in the proceeding, by designated
officers ofthe corporation, or by other representatives appointed by the court or
judge. Where the action requires the filing of articles or a certificate with the
SecretaryofState, subsection(c)ofnewCodeSection 14-2-104specificallyprovides
that the articles or certificate may certify that it was filed pursuant to the decree
ororderofabankruptcycourt. Thevalidityofthe actiontakenunderCode Section
14-2-104 is not dependent on the existence or pendency of a confirmed plan of
reorganization andthe authoritygrantedthereunderterminates uponthe comple-
tion ofsuch a bankruptcy proceeding.
Part 2
Filing Documents
14-2-120. Filing requirements.
(a) A document must satisfy the requirements of this Code section
and ofany other Code section that adds to orvaries these requirements
to be entitled to filing by the Secretary of State.
(b) This chapter must require or permit filing the document in the
office ofthe Secretary of State.
(c) The document must contain the information required by this
chapter. It may contain other information as well.
(d) The document must be typewritten or printed.
(e) The document must be in the English language.Acorporate name
need not be in English ifwritten in English letters orArabic or Roman
numerals, and the certificate of existence required of foreign corpora-
tions need not be in English if accompanied by a reasonably authenti-
cated English translation.
(f) The document must be executed:
(1) By the chairperson of the board of directors of a domestic or
foreign corporation, by its president, or by another ofits officers;
(2) If directors have not been selected or the corporation has not
been formed, by an incorporator; or
(3) Ifthe corporation is in the hands ofa receiver, trustee, or other
court appointed fiduciary, by that fiduciary;
provided, however, that the person executing the document may do so
as an attorney in fact. Powers of attorney relating to the execution of
the document do not need to be shown to or filed with the Secretary of
State.
(g) The person executing the document shall sign it and state
beneath or opposite his or her signature his or her name and the
6 2012 Supp.