§ 16-6a-1008. Conversion to a business corporation.

(1)

(a) A domestic nonprofit corporation may convert to a corporation subject to Title 16, Chapter 10a, Utah Revised Business Corporation Act, by filing an amendment of its articles of incorporation with the division pursuant to this section.

(b) The day on which a nonprofit domestic corporation files an amendment under this section, the domestic nonprofit corporation becomes a corporation subject to Title 16, Chapter 10a, Utah Revised Business Corporation Act, except that, notwithstanding Section 16-10a-203, the existence of the nonprofit corporation is considered to commence on the day on which the converting corporation:

(i) commenced its existence under this chapter; or

(ii) otherwise was created, formed, incorporated, or came into being.

(2) The amendment of the articles of incorporation to convert to a corporation shall:

(a) revise the statement of purpose;

(b) delete:

(i) the authorization for members; and

(ii) any other provisions relating to memberships;

(c) authorize shares:

(i) stating the number of shares; and

(ii) including the information required by Section 16-10a-601 with respect to each class of shares the corporation is to be authorized to issue;

(d) make such other changes as may be necessary or desired; and

(e) if the corporation has any members, provide for:

(i) the cancellation of the memberships; or

(ii) the conversion of the memberships to shares of the corporation.

(3) If the nonprofit corporation has any voting members, an amendment to convert to a corporation shall be approved by all of the members regardless of limitations or restrictions on the voting rights of the members.

(4) If an amendment to the articles of incorporation filed pursuant to this section is included in a merger agreement, this section applies, except that any provisions for cancellation or conversion of memberships:

(a) shall be in the merger agreement; and

(b) may not be in the amendment of the articles of incorporation.

(5) A conversion under this section may not result in a violation, directly or indirectly, of:

(a) Section 16-6a-1301; or

(b) any other provision of this chapter.

(6) The conversion of a nonprofit corporation into a corporation does not affect:

(a) an obligation or liability of the converting nonprofit corporation incurred before its conversion to a corporation; or

(b) the personal liability of any person incurred before the conversion.

(7)

(a)

(i) When a conversion is effective under this section, for purposes of the laws of this state, the things listed in Subsection (7)(a)(ii):

(A) vest in the corporation to which the nonprofit corporation converts;

(B) are the property of the corporation; and

(C) are not considered transferred by the converting nonprofit corporation to the corporation by operation of this Subsection (7)(a).

(ii) This Subsection (7)(a) applies to the following of the converting nonprofit corporation:

(A) its rights, privileges, and powers;

(B) its interests in property, whether real, personal, or mixed;

(C) debts due to the converting nonprofit corporation;

(D) the debts, liabilities, and duties of the converting nonprofit corporation;

(E) the rights and obligations under contract of the converting nonprofit corporation; and

(F) other things and causes of action belonging to the converting nonprofit corporation.

(b) The title to any real property vested by deed or otherwise in a nonprofit corporation converting to a corporation does not revert and is not in any way impaired by reason of this chapter or of the conversion.

(c) A right of a creditor or a lien on property of a converting nonprofit corporation that is described in Subsection (6)(a) or (b) is preserved unimpaired.

(d) A debt, liability, or duty of a converting nonprofit corporation:

(i) remains attached to the corporation to which the nonprofit corporation converts; and

(ii) may be enforced against the corporation to the same extent as if the debts, liabilities, and duties had been incurred or contracted by the corporation in its capacity as a corporation.

(e) A converted nonprofit corporation upon conversion to a corporation pursuant to this section is considered the same entity as the corporation.

(f) In connection with a conversion of a nonprofit corporation to a corporation under this section, the interests or rights in the nonprofit corporation which is to be converted may be exchanged or converted into one or more of the following:

(i) cash, property, interests, or rights in the corporation to which it is converted; or

(ii) cash, property or interests in, or rights in another entity.

(g) Unless otherwise agreed:

(i) a converting nonprofit corporation is not required solely as a result of the conversion to:

(A) wind up its affairs;

(B) pay its liabilities; or

(C) distribute its assets; and

(ii) a conversion is not considered to constitute a dissolution of the nonprofit corporation, but constitutes a continuation of the existence of the nonprofit corporation in the form of a corporation.

Amended by Chapter 386, 2009 General Session