Substitute Senate Bill No. 951
AN ACT CONCERNING PROFESSIONAL CORPORATIONS OF PHYSICIAN ASSISTANTS AND ADVANCED PRACTICE REGISTERED NURSES, BUSINESS CORPORATION SHARES AND REFERENCES IN DOCUMENTS TO EXTRINSIC FACTS.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 33-182a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
As used in this chapter: [the following words shall have the meaning indicated: ]
(1) "Professional service" means any type of service to the public that requires that members of a profession rendering such service obtain a license or other legal authorization as a condition precedent to the rendition thereof, limited to the professional services rendered by dentists, natureopaths, chiropractors, physicians and surgeons, physician assistants, doctors of dentistry, physical therapists, occupational therapists, podiatrists, optometrists, nurses, nurse-midwives, veterinarians, pharmacists, architects, professional engineers, or jointly by architects and professional engineers, landscape architects, real estate brokers, insurance producers, certified public accountants and public accountants, land surveyors, psychologists, attorneys-at-law, licensed marital and family therapists, licensed professional counselors and licensed clinical social workers.
(2) "Professional corporation" means (A) a corporation which is organized under this chapter for the sole and specific purpose of rendering professional service and which has as its shareholders only individuals who themselves are licensed or otherwise legally authorized to render the same professional service as the corporation, (B) a corporation which is organized under this chapter for the sole and specific purpose of rendering professional services rendered by members of two or more of the following professions: Psychology, marital and family therapy, social work, nursing, professional counseling and psychiatry and that has as its shareholders only individuals who themselves are licensed or otherwise legally authorized to render one of the professional services for which the corporation was specifically incorporated, [or] (C) a corporation which is organized under this chapter for the sole and specific purpose of rendering professional services by physicians specializing in ophthalmology and optometrists and that has as its shareholders only individuals who themselves are licensed or otherwise legally authorized to render one of the professional services for which the corporation was specifically incorporated, or (D) a corporation which is organized under this chapter for the sole and specific purpose of rendering professional services by (i) physicians, and (ii) physician assistants or advanced practice registered nurses, or both, and that has as its shareholders only individuals who themselves are licensed or otherwise legally authorized to render one of the professional services for which the corporation was specifically incorporated.
(3) "Shareholder" means the holder of any shares of the capital stock of a professional corporation. The shareholders of a professional corporation may be designated as "members" in its certificate of incorporation, bylaws and other corporate documents and may be referred to, for all purposes, as "members", whether or not so designated; and [,] the term "shareholder" or "shareholders", when used in the general statutes in reference to the shareholders of a professional corporation, shall include such "members".
Sec. 2. Subsection (b) of section 33-182c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
(b) Any group of persons, each member of which is licensed or otherwise legally authorized to render any of the professional services specified in subparagraph (B), [or] (C) or (D) of subdivision (2) of section 33-182a, as amended by this act, may organize and become shareholders of a professional corporation for profit under the provisions of chapter 601, for the sole and specific purpose of rendering two or more of the professional services specified in said subparagraph (B), [or] (C) or (D), respectively.
Sec. 3. Section 33-602 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
As used in sections 33-600 to 33-998, inclusive:
(1) "Address" means location as described by the full street number, if any, street, city or town, state or country and not a mailing address such as a post office box.
(2) "Authorized shares" means the shares of all classes a domestic or foreign corporation is authorized to issue.
(3) "Certificate of incorporation" means the original certificate of incorporation or restated certificate of incorporation, and all amendments thereto, and all certificates of merger or consolidation. In the case of a specially chartered corporation, "certificate of incorporation" means the special charter of the corporation, including any portions of the charters of its predecessor companies which have continuing effect, and any amendments to the charter made by special act or pursuant to general law. In the case of a corporation formed before January 1, 1961, or of a specially chartered corporation, "certificate of incorporation" includes those portions of any other corporate instruments or resolutions of current application in which are set out provisions of the sort which either (A) are required by sections 33-600 to 33-998, inclusive, to be embodied in the certificate of incorporation, or (B) are expressly permitted by sections 33-600 to 33-998, inclusive, to be operative only if included in the certificate of incorporation. It also includes what were, prior to January 1, 1961, designated at law as agreements of association, articles of incorporation, charters and other such terms.
(4) "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.
(5) "Corporation" or "domestic corporation" means a corporation with capital stock, which is not a foreign corporation, incorporated under the laws of this state, whether general law or special act and whether before or after January 1, 1997.
(6) "Deliver" or "delivery" means any method of delivery used in conventional commercial practice including delivery by hand, mail, commercial delivery and electronic transmission.
(7) "Distribution" means a direct or indirect transfer of money or other property, except its own shares, or incurrence of indebtedness by a corporation to or for the benefit of its shareholders in respect 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.
(8) "Document" includes anything delivered to the office of the Secretary of the State for filing under sections 33-600 to 33-998, inclusive.
(9) "Effective date of notice" is defined in section 33-603.
(10) "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.
(11) "Employee" includes an officer but not a director. A director may accept duties that make him also an employee.
(12) "Entity" includes a corporation and foreign corporation; nonprofit corporation; profit and nonprofit unincorporated association; business trust, estate, partnership, limited liability company, trust and two or more persons having a joint or common economic interest; and state, United States or foreign government.
(13) "Facts objectively ascertainable" outside of a plan or filed document is defined in subsection (l) of section 33-608, as amended by this act.
[(13)] (14) "Foreign corporation" means a corporation incorporated under a law other than the law of this state.
[(14)] (15) "Governmental subdivision" includes authority, county, district and municipality.
[(15)] (16) "Includes" denotes a partial definition.
[(16)] (17) "Individual" includes the estate of an incompetent or deceased individual.
[(17)] (18) "Means" denotes an exhaustive definition.
[(18)] (19) "Notice" is defined in section 33-603.
[(19)] (20) "Person" includes individual and entity.
[(20)] (21) "Principal office" of a domestic corporation means the address of the principal office of such corporation in this state, if any, as the same appears in the last annual report, if any, filed by such corporation with the Secretary of the State. If no principal office so appears, the corporation's "principal office" means the address in this state of the corporation's registered agent for service as last shown on the records of the Secretary of the State. In the case of a domestic corporation which has not filed such an annual report or appointment of registered agent for service, the "principal office" means the address of the principal place of business of such corporation in this state, if any, and if such corporation has no place of business in this state, its "principal office" shall be the office of the Secretary of the State.
[(21)] (22) "Proceeding" includes civil suit and criminal, administrative and investigatory action.
[(22)] (23) "Record date" means the date established under sections 33-665 to 33-687, inclusive, or sections 33-695 to 33-727, inclusive, on which a corporation determines the identity of its shareholders and their shareholdings for purposes of sections 33-600 to 33-998, inclusive. 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.
[(23)] (24) "Secretary" means the corporate officer to whom under the bylaws or by the board of directors is delegated responsibility under subsection (c) of section 33-763 for custody of the minutes of the meetings of the board of directors and of the shareholders and for authenticating records of the corporation.
[(24)] (25) "Secretary of the State" means the Secretary of the State of Connecticut.
[(25)] (26) "Shares" means the units into which the proprietary interests in a corporation are divided.
[(26)] (27) "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.
[(27)] (28) "Sign" or "signature" includes any manual, facsimile, conformed or electronic signature.
[(28)] (29) "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.
[(29)] (30) "Subscriber" means a person who subscribes for shares in a corporation, whether before or after incorporation.
[(30)] (31) "United States" includes any district, authority, bureau, commission, department and other agency of the United States.
[(31)] (32) "Voting group" means all shares of one or more classes or series that under the certificate of incorporation or sections 33-600 to 33-998, inclusive, are entitled to vote and be counted together collectively on a matter at a meeting of shareholders. All shares entitled by the certificate of incorporation or said sections to vote generally on the matter are for that purpose a single voting group.
Sec. 4. Section 33-608 of the general statutes is amended by adding subsection (l) as follows (Effective October 1, 2003):
(NEW) (l) As used in this subsection, "filed document" means a document filed with the Secretary of the State under any provision of sections 33-600 to 33-998, inclusive, except sections 33-920 to 33-937, inclusive, and section 33-953, and "plan" means a plan of merger or share exchange. Whenever a provision of sections 33-600 to 33-998, inclusive, permits any of the terms of a plan or filed document to be dependent on facts objectively ascertainable outside the plan or filed document, the following provisions apply:
(1) The manner in which the facts will operate upon the terms of the plan or filed document shall be set forth in the plan or filed document;
(2) The facts may include, but are not limited to (A) any of the following that is available in a nationally recognized news or information medium either in print or electronically: Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data, (B) a determination or action by any person or body, including the corporation or any other party to a plan or filed document, or (C) the terms of, or actions taken under, an agreement to which the corporation is a party, or any other agreement or document;
(3) The following provisions of a plan or filed document may not be made dependent on facts outside the plan or filed document: (A) The name and address of any person required in a filed document; (B) the registered office of any entity required in a filed document; (C) the registered agent of any entity required in a filed document; (D) the number of authorized shares and designation of each class or series of shares; (E) the effective date of a filed document; and (F) any required statement in a filed document of the date on which the underlying transaction was approved or the manner in which such approval was given; and
(4) If a provision of a filed document is made dependent on a fact ascertainable outside of the filed document, and such fact is not ascertainable by reference to a source described in subparagraph (A) of subdivision (2) of this subsection or a document that is a matter of public record, or the affected shareholders have not received notice of the fact from the corporation, then the corporation shall file with the Secretary of the State a certificate of amendment setting forth the fact promptly after the time when the fact referred to is first ascertainable or thereafter changes. Certificates of amendment under this subdivision are deemed to be authorized by the authorization of the original plan or filed document to which they relate and may be filed by the corporation without further action by the board of directors or the shareholders.
Sec. 5. Section 33-636 of the general statutes is amended by adding subsection (d) as follows (Effective October 1, 2003):
(NEW) (d) Provisions of the certificate of incorporation may be made dependent upon facts objectively ascertainable outside the certificate of incorporation in accordance with subsection (l) of section 33-608, as amended by this act.
Sec. 6. Section 33-665 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
(a) The certificate of incorporation shall [prescribe the] set forth any classes of shares and series of shares within a class, and the number of shares of each class and series, that the corporation is authorized to issue. If more than one class or series of shares is authorized, the certificate of incorporation shall prescribe a distinguishing designation for each class [,] or series and must describe, prior to the issuance of shares of a class [, the preferences, limitations and relative rights of that class shall be described in the certificate of incorporation. All shares of a class shall have preferences, limitations and relative rights identical with those of other shares of the same class except to the extent otherwise permitted by section 33-666] or series, the terms, including the preferences, rights and limitations, of such class or series. Except to the extent varied as permitted by this section, all shares of a class or series shall have terms, including preferences, rights and limitations, that are identical with those of other shares of the same class or series.
(b) The certificate of incorporation shall authorize (1) one or more classes or series of shares that together have unlimited voting rights, and (2) one or more classes or series of shares, which may be the same class or classes as those with voting rights, that together are entitled to receive the net assets of the corporation upon dissolution.
(c) The certificate of incorporation may authorize one or more classes or series of shares that: (1) Have special, conditional or limited voting rights, or no right to vote, except [to the extent prohibited] as otherwise provided by sections 33-600 to 33-998, inclusive; (2) are redeemable or convertible as specified in the certificate of incorporation (A) at the option of the corporation, the shareholder or another person or upon the occurrence of a [designated] specified event, (B) for cash, indebtedness, securities or other property, and (C) [in a designated amount or in an amount determined in accordance with a designated formula or by reference to extrinsic data or events] at prices and in amounts specified or determined in accordance with a formula; (3) entitle the holders to distributions calculated in any manner, including dividends that may be cumulative, noncumulative or partially cumulative; or (4) have preference over any other class or series of shares with respect to distributions, including [dividends and] distributions upon the dissolution of the corporation.
(d) Terms of shares may be made dependent upon facts objectively ascertainable outside the certificate of incorporation in accordance with subsection (l) of section 33-608, as amended by this act.
(e) Any of the terms of shares may vary among holders of the same class or series as long as such variations are expressly set forth in the certificate of incorporation.
[(d)] (f) The description of the [designations,] preferences, rights and limitations [and relative rights of share] of classes or series of shares in subsection (c) of this section is not exhaustive.
Sec. 7. Section 33-666 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
(a) If the certificate of incorporation so provides, the board of directors [may determine, in whole or part, the preferences, limitations and relative rights, within the limits set forth in section 33-665, of (1) any class of shares before the issuance of any shares of that class or (2) one or more series within a class before the issuance of any shares of that series] is authorized, without shareholder approval, to: (1) Classify any unissued shares into one or more classes or into one or more series within a class; (2) reclassify any unissued shares of any class into one or more classes or into one or more series within one or more classes; or (3) reclassify any unissued shares of any series of any class into one or more classes or into one or more series within a class.
(b) [Each series of a class shall be given a distinguishing designation] If the board of directors acts pursuant to subsection (a) of this section, it must determine the terms, including the preferences, rights and limitations, to the same extent permitted under section 33-665, as amended by this act, of: (1) Any class of shares before the issuance of any shares of such class; or (2) any series within a class before the issuance of any shares of such series.
[(c) All shares of a series shall have preferences, limitations and relative rights identical with those of other shares of the same series and, except to the extent otherwise provided in the description of the series, with those of other series of the same class. ]
[(d)] (c) Before issuing any shares of a class or series created under this section, the corporation must deliver to the Secretary of the State for filing a certificate of amendment [, which is effective without shareholder action, that sets forth: (1) The name of the corporation; (2) the text of the amendment determining the terms of the class or series of shares; (3) the date it was adopted; and (4) a statement that the amendment was duly adopted by the board of directors] setting forth the terms determined under subsection (a) of this section.
Sec. 8. Section 33-675 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
(a) A corporation may issue rights, options or warrants for the purchase of shares or other securities of the corporation. The board of directors shall determine (1) the terms upon which the rights, options or warrants are issued, [their form and content,] and (2) the terms upon which, including the consideration for which, the shares or other securities are to be issued. The authorization by the board of directors for the corporation to issue such rights, options or warrants constitutes authorization of the issuance of the shares or other securities for which the rights, options or warrants are exercisable.
(b) The terms and conditions of such rights, options or warrants, including those outstanding on the effective date of this section, may include, but are not limited to, restrictions or conditions that: (1) Preclude or limit the exercise, transfer or receipt of such rights, options or warrants by any person or persons owning or offering to acquire a specified number or percentage of the outstanding shares or other securities of the corporation or by any transferee or transferees of any such person or persons; or (2) invalidate or void such rights, options or warrants held by any such person or persons or any such transferee or transferees.
Sec. 9. Section 33-800 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
A corporation amending its certificate of incorporation shall deliver to the Secretary of the State for filing a certificate of amendment setting forth: (1) The name of the corporation; (2) the text of each amendment adopted, or the information required by subsection (l) of section 33-608, as amended by this act; (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, which may be made dependent upon facts objectively ascertainable outside the certificate of amendment in accordance with subsection (l) of section 33-608, as amended by this act; (4) the date of each amendment's adoption; (5) if an amendment was adopted by the incorporators or board of directors without shareholder action, a statement to that effect and that shareholder action was not required; (6) if an amendment was approved by the shareholders (A) the designation, number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the amendment and number of votes of each voting group indisputably represented at the meeting, (B) either the total number of votes cast for and against the amendment by each voting group entitled to vote separately on the amendment or the total number of undisputed votes cast for the amendment by each voting group and a statement that the number cast for the amendment by each voting group was sufficient for approval by that voting group; (7) if an amendment is being filed pursuant to subsection (l) of section 33-608, as amended by this act, a statement to that effect.
Sec. 10. Section 33-815 of the general statutes is amended by adding subsection (d) as follows (Effective October 1, 2003):
(NEW) (d) Terms of a plan of merger may be made dependent on facts objectively ascertainable outside the plan in accordance with subsection (l) of section 33-608, as amended by this act.
Sec. 11. Section 33-816 of the general statutes is amended by adding subsection (e) as follows (Effective October 1, 2003):
(NEW) (e) Terms of a plan of share exchange may be made dependent on facts objectively ascertainable outside the plan in accordance with subsection (l) of section 33-608, as amended by this act.
Sec. 12. Subsection (e) of section 33-945 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
(e) A corporation shall keep a copy of the following records at its principal office: (1) Its certificate of incorporation or restated certificate of incorporation, [and] all amendments to them currently in effect and any notices to shareholders referred to in subsection (l) of section 33-608, as amended by this act, regarding facts on which a document is dependent; (2) its bylaws or restated bylaws and all amendments to them currently in effect; (3) resolutions adopted by its board of directors creating one or more classes or series of shares and fixing their relative rights, preferences and limitations, if shares issued pursuant to those resolutions are outstanding; (4) the minutes of all shareholders' meetings and records of all action taken by shareholders without a meeting for the past three years; (5) all written communications to shareholders generally within the past three years, including the financial statements furnished for the past three years under section 33-951; (6) a list of the names and business addresses of its current directors and officers; and (7) its most recent annual report delivered to the Secretary of the State under section 33-953.
Sec. 13. Subsection (c) of section 36a-106 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
(c) Before the issuance of preferred shares, any provision of which is fixed or determined by the governing board in accordance with [subsection (a) of] section 33-666, as amended by this act, the governing board shall amend the certificate of incorporation of the capital stock Connecticut bank as provided in [subsection (d) of] section 33-666, as amended by this act.
Approved June 26, 2003