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4875Ratification Number: 431Act Number: 371Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 20000405Primary Sponsor: D. SmithAll Sponsors: D. SmithDrafted Document Number: l:\council\bills\skb\18310som00.docCompanion Bill Number: 1319Date Bill Passed both Bodies: 20000601Date of Last Amendment: 20000524Governor's Action: SDate of Governor's Action: 20000614Subject: Businesses and Corporations, electronic transmission defined for Corporate Code purposes, proxy; Computers, InternetHistory Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20000711 Act No. A371 ------ 20000614 Signed by Governor ------ 20000608 Ratified R431 Senate 20000601 Read third time, enrolled for ratification Senate 20000531 Read second time, notice of general amendments Senate 20000530 Recalled from Committee, 11 SJ placed on the Calendar Senate 20000525 Introduced, read first time, 11 SJ referred to Committee House 20000525 Read third time, sent to Senate ------ 20000525 Scrivener's error corrected House 20000524 Amended, read second time House 20000523 Committee report: Favorable with 25 HJ amendment ------ 20000407 Companion Bill No. 1319 House 20000405 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill Revised on May 23, 2000 - Word format Revised on May 24, 2000 - Word format Revised on May 25, 2000 - Word format Revised on May 30, 2000 - Word format
(A371, R431, H4875)
AN ACT TO AMEND SECTION 33-1-400, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS USED IN THE CORPORATE CODE, SO AS TO PROVIDE A DEFINITION OF ELECTRONIC TRANSMISSION, AND TO AMEND SECTION 33-7-220, RELATING TO VOTING BY PROXY, SO AS TO PROVIDE A SHAREHOLDER MAY APPOINT A PROXY BY ELECTRONIC TRANSMISSION AND THAT A COPY OR FACSIMILE TRANSMISSION OF THE ELECTRONIC TRANSMISSION MAY BE USED IN ALL SITUATIONS IN WHICH AN ORIGINAL APPOINTMENT FORM IS USED.
Be it enacted by the General Assembly of the State of South Carolina:
Define electronic transmission; appoint proxy by electronic transmission
SECTION 1. Section 33-1-400 of the 1976 Code, as last amended by Act 328 of 1998, is further amended to read:
"Section 33-1-400. As used in Chapters 1 through 19 of this title:
(1) 'Agreement' includes a valid agreement, written or oral, of the shareholders or between any of the shareholders and the corporation as to the affairs of the corporation and the conduct of its business. The bylaws of a corporation are an agreement.
(2) 'Articles of incorporation' includes amended and restated articles of incorporation and articles of merger.
(3) 'Authorized shares' means the shares of all classes a domestic or foreign corporation is authorized to issue.
(4) 'Corporation' or 'domestic corporation' means a corporation for profit, which is not a foreign corporation, incorporated pursuant or subject to the provisions of Chapters 1 through 20 of this Title. 'Corporation' or 'domestic corporation' also may include a 'nonprofit' corporation to the extent permitted by the provisions of Section 33-20-103.
(5) 'Conspicuous' means written so that a reasonable person against whom the writing is to operate should notice it. For example, printing in italics, boldface, or contrasting color, or typing in capitals or underlined is conspicuous.
(6) 'Deliver' includes mail.
(7) 'Distribution' means a direct or indirect transfer of money or other property, except its own shares, or incurring of indebtedness by a corporation to or for the benefit of its shareholders in respect to 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 other distribution.
(8) 'Effective date of notice' is defined in Section 33-1-410.
(9) 'Electronic transmission' or 'electronically transmitted' means a 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.
(10) 'Employee' includes an officer but not a director, unless a director accepts duties that make him also an employee.
(11) 'Entity' includes corporation and foreign corporation; not-for-profit corporation; profit and not-for-profit unincorporated association; business trust, estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, United States, and foreign government.
(12) 'Foreign corporation' means a corporation for profit incorporated pursuant to a law other than the law of this State.
(13) 'Governmental subdivision' includes authority, county, district, and municipality.
(14) 'Includes' denotes a partial definition.
(15) 'Individual' includes the estate of an incompetent or deceased individual.
(16) 'Means' denotes an exhaustive definition.
(17) 'Notice' is defined in Section 33-1-410.
(18) 'Person' includes individual and entity.
(19) 'Principal office' means the in-state or out-of-state location of the principal executive offices of a domestic or foreign corporation as designated in the annual report.
(20) 'Proceeding' includes civil suit and criminal, administrative, and investigatory action, and formal or informal arbitration.
(21) 'Record date' means the date established by Chapter 6 or 7 on which a corporation determines the identity of its shareholders for purposes of Chapters 1 through 20 of this title.
(22) 'Secretary' means the corporate officer to whom the board of directors has delegated responsibility pursuant to Section 33-8-400(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.
(23) 'Shares' means the units into which the proprietary interests in a corporation are divided.
(24) '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 rights granted by a nominee certificate are on file with a corporation. Creditors of a corporation may have the rights of a shareholder as allowed in the corporation's articles of incorporation.
(25) 'State' includes a state, commonwealth, territory, and insular possession, and their agencies and governmental subdivisions, of the United States and the District of Columbia.
(26) 'Subscriber' means a person who subscribes for shares in a corporation before or after incorporation.
(27) 'United States' includes district, authority, bureau, commission, department, and other agency of the United States.
(28) 'Voting group' means all shares of one or more classes or series that may vote and be counted together collectively on a matter at a meeting of shareholders pursuant to the articles of incorporation or Chapters 1 through 20 of this Title. Shares entitled to vote generally on the matter are for that purpose a single voting group.
(29) 'Public corporation' means a corporation that has a class of equity securities registered with a federal agency pursuant to the Securities Exchange Act of 1934 or a successor act to the Securities Exchange Act of 1934."
SECTION 2. Section 33-7-220 of the 1976 Code is amended to read:
"Section 33-7-220. (a) A shareholder may vote his shares in person or by proxy.
(b) A shareholder or his agent or attorney in fact may appoint a proxy to vote or otherwise act for him, including giving waivers and consents, by signing an appointment form or by an electronic transmission of appointment. The electronic transmission must contain or be accompanied by sufficient information to determine that the transmission appointing the proxy is authorized. A proxy must have an effective date. If not dated by the person giving the proxy, the effective date of the proxy is the date on which it is received by the person appointed to serve as proxy, and that date must be noted by the appointee on the appointment form.
(c) An appointment of a proxy is effective when the appointment form or electronic transmission is received by the secretary or other officer or agent authorized to tabulate votes. Unless a time of expiration is otherwise specified, an appointment is valid for eleven months.
(d) An appointment of a proxy is revocable by the shareholder unless the appointment form or electronic transmission conspicuously states that it is irrevocable and the appointee is:
(1) a pledgee;
(2) a person who purchased or agreed to purchase the shares;
(3) a creditor of the corporation who extended it credit under terms requiring the appointment;
(4) an employee of the corporation whose employment contract requires the appointment; or
(5) a party to a voting agreement created under Section 33-7-310.
(e) The death or incapacity of the shareholder appointing a proxy does not affect the right of the corporation to accept the proxy's authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises his authority pursuant to the appointment.
(f) An appointment made irrevocable as provided by subsection (d) is revoked when the interest with which it is coupled is extinguished.
(g) A transferee for value of shares subject to an irrevocable appointment may revoke the appointment if he did not know of its existence when he acquired the shares and the existence of the irrevocable appointment was not noted conspicuously on the certificate representing the shares or on the information statement for shares without certificates.
(h) Subject to Section 33-7-240 and to an express limitation on the proxy's authority appearing on the face of the appointment form or electronic transmission, a corporation may accept the proxy's vote or other action as that of the shareholder making the appointment.
(i) A proxy may not be solicited on the basis of any proxy statement or other communication, written or oral, containing a statement which, at the time and in light of the circumstances under which it was made, was false or misleading with respect to a material fact or which omits to state a material fact necessary to make the statements made not false or misleading.
(j) A copy, facsimile transmission, or other reliable reproduction of the appointment form or electronic transmission created pursuant to subsection (b) of this section may be substituted or used instead of the original appointment form or electronic transmission for all purposes for which the original appointment form or electronic transmission is used, except that the copy, facsimile transmission, or other reproduction must be a complete reproduction of the entire original appointment form or electronic transmission."
SECTION 3. This act takes effect upon approval by the Governor.
Ratified the 8th day of June, 2000.
Approved the 14th day of June, 2000.
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