NONPROFIT CORPORATIONS--DOMESTICATION AND CONVERSION

SDCL tit. 47, ch. 47-25A

in effect

SDCL § 47-25A-1 Definitions.

47-25A-1. Definitions. Terms used in this chapter, mean: (1) "Conversion," a transaction authorized by §§ 47-25A-8 to 47-25A-22, inclusive; (2) "Converting corporation," the domestic or foreign nonprofit or business corporation that approves a conversion pursuant to §§ 47-25A-8 to 47-25A-22, inclusive, or the applicable laws of the foreign jurisdiction; (3) "Converting entity," the domestic or foreign entity that approves a conversion pursuant to §§ 47-25A-8 to 47-25A-22, inclusive; (4) "Domesticated corporation," the domesticating corporation as it continues in existence after a domestication; (5) "Domesticating corporation," the domestic nonprofit corporation that adopts a plan of domestication pursuant to §§ 47-25A-3 to 47-25A-7, inclusive, or the foreign nonprofit corporation that approves a domestication pursuant to the applicable laws of the foreign jurisdiction; (6) "Domestication," a transaction authorized by §§ 47-25A-3 to 47-25A-7, inclusive; (7) "Surviving corporation," the corporation as it continues in existence immediately after consummation of a for-profit conversion pursuant to §§ 47-25A-3 to 47-25A-22, inclusive; (8) "Surviving entity," the unincorporated entity as it continues in existence immediately after consummation of an entity conversion pursuant to §§ 47-25A-3 to 47-25A-22, inclusive. SL 2016, ch 221, § 16.

SDCL § 47-25A-2 Required approvals.

47-25A-2. Required approvals. If a domestic or foreign nonprofit corporation may not be a party to a merger or sale of its assets without the approval of the attorney general, the Division of Insurance, or the Public Utilities Commission, the corporation may not be a party to a conversion or domestication without the prior approval of that agency. SL 2016, ch 221, § 17.

SDCL § 47-25A-3 Domestication--Plan of domestication.

47-25A-3. Domestication--Plan of domestication. (a) A foreign nonprofit corporation may become a domestic nonprofit corporation only if the domestication is authorized by the laws of the foreign jurisdiction. (b) A domestic nonprofit corporation may become a foreign nonprofit corporation if the domestication is permitted by the laws of the foreign jurisdiction. Regardless of whether the laws of the foreign jurisdiction require the adoption of a plan of domestication, the domestication must be approved by the adoption by the corporation of a plan of domestication. (c) The plan of domestication must include: (1) A statement of the jurisdiction in which the corporation is to be domesticated; (2) The terms and conditions of the domestication; (3) The manner and basis of canceling or reclassifying the memberships of the corporation following its domestication into memberships, obligations, rights to acquire memberships, cash, other property, or any combination of the foregoing; and (4) Any desired amendments to the articles of incorporation or bylaws of the corporation following its domestication. (d) The plan of domestication may also include a provision that the plan may be amended prior to filing the document required by the laws of this state or the other jurisdiction to consummate the domestication; except that, subsequent to approval of the plan by the members, the plan may not be amended without the approval of the members to change: (1) The amount or kind of memberships, obligations, rights to acquire memberships, cash, or other property to be received by the members under the plan; (2) The articles of incorporation to be in effect immediately following the domestication; or (3) Any of the other terms or conditions of the plan if the change would adversely affect any of the members in any material respect. (e) If any debt security, note or similar evidence of indebtedness for money borrowed, whether secured or unsecured, or a contract of any kind, issued, incurred or executed by a domestic nonprofit corporation before July 1, 2016 contains a provision applying to a merger of the corporation and the document does not refer to a domestication of the corporation, the provision shall be deemed to apply to a domestication of the corporation until such time as the provision is amended subsequent to that date. SL 2016, ch 221, § 18.

SDCL § 47-25A-4 Domestication of a domestic nonprofit corporation in a foreign jurisdiction.

47-25A-4. Domestication of a domestic nonprofit corporation in a foreign jurisdiction. In the case of a domestication of a domestic nonprofit corporation in a foreign jurisdiction: (1) The plan of domestication must be adopted by the board of directors; (2) After adopting the plan of domestication the board of directors must submit the plan to the members for their approval, if there are members entitled to vote on the plan. The board of directors must also transmit to the members a recommendation that the members approve the plan, 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 members the basis for that determination; (3) The board of directors may condition its submission of the plan of domestication to the members on any basis; (4) If the approval of the members is to be given at a meeting, the corporation must notify each member, whether or not entitled to vote, of the meeting of members at which the plan of domestication 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. The notice must include or be accompanied by a copy of the proposed articles of incorporation and bylaws to be in effect immediately after the domestication; (5) Unless the articles of incorporation or bylaws, or the board of directors acting pursuant to subdivision (3) of this section, requires a greater vote or a greater number of votes to be present, the approval of the plan of domestication by the members requires the approval of the members at a meeting at which a quorum exists, and, if any class of members is entitled to vote as a separate group on the plan, the approval of each such separate class at a meeting at which a quorum of the class exists; (6) Separate voting by classes is required by each class of members that: (i) Are to be reclassified under the plan of domestication into a different class of memberships, or into obligations, rights to acquire memberships, cash, other property, or any combination of the foregoing; (ii) Would be entitled 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 classes; or (iii) Is entitled under the articles of incorporation or bylaws to vote as a class to approve an amendment of the articles of incorporation; (7) If any provision of the articles of incorporation, bylaws, or an agreement to which any of the directors, members of a designated body, or members are parties, adopted or entered into before July 1, 2016, applies to a merger of the corporation and that document does not refer to a domestication of the corporation, the provision shall be deemed to apply to a domestication of the corporation until such time as the provision is amended subsequent to that date. SL 2016, ch 221, § 19.

SDCL § 47-25A-5 Articles of domestication.

47-25A-5. Articles of domestication. (a) Articles of domestication must be signed on behalf of the domesticating corporation by any officer or other duly authorized representative. The articles of domestication must set forth: (1) The name and jurisdiction of incorporation of the domesticating corporation; (2) The name and jurisdiction of incorporation of the domesticated entity; and (3) If the domesticating corporation is a domestic nonprofit corporation, a statement that the plan of domestication was approved in accordance with the laws of this state, or, if the domesticating corporation is a foreign nonprofit corporation, a statement that the domestication was approved in accordance with the laws of its jurisdiction of incorporation. (b) If the domesticated corporation is a domestic nonprofit corporation, the articles of domestication shall contain all of the provisions required to be contained in the articles of incorporation of a nonprofit corporation as set forth in § 47-22-6. The name of the domesticated corporation must satisfy the requirements of §§ 47-22-7 and 47-22-8.1. (c) The articles of domestication must be delivered to the Office of the Secretary of State for filing. (d) If the domesticating corporation is a qualified foreign nonprofit corporation, its certificate of authority is cancelled automatically on the effective date of its domestication. SL 2016, ch 221, § 20.

SDCL § 47-25A-6 Effect of domestication--Liability of member of foreign nonprofit corporation domesticated in this state.

47-25A-6. Effect of domestication--Liability of member of foreign nonprofit corporation domesticated in this state. (a) Except as otherwise prohibited by law, when a domestication becomes effective: (1) The title to all real and personal property, both tangible and intangible, of the domesticating corporation remains in the domesticated corporation without reversion or impairment; (2) The liabilities of the domesticating corporation remain the liabilities of the domesticated corporation; (3) An action or proceeding pending against the domesticating corporation continues against the domesticated corporation as if the domestication had not occurred; (4) The articles of domestication, or the articles of incorporation attached to the articles of domestication, constitute the articles of incorporation of a foreign corporation domesticating in this state; (5) The memberships in the domesticating corporation are reclassified into memberships, obligations, rights to acquire memberships, or cash or other property in accordance with the terms of the domestication, and the members are entitled only to the rights provided by those terms; and (6) The domesticating corporation is deemed to: (i) Be incorporated under and subject to the same body of law of as the domesticated corporation for all purposes; and (ii) Be the same corporation without interruption as the domesticating corporation. (b) The personal liability of a member in a foreign nonprofit corporation that is domesticated in this state is as follows: (1) The domestication does not discharge any personal liability under the laws of the foreign jurisdiction to the extent any such personal liability arose before the effective time of the articles of domestication; (2) The member does not have personal liability under the laws of the foreign jurisdiction for any debt, obligation, or liability of the corporation that arises after the effective time of the articles of domestication; (3) The provisions of the laws of the foreign jurisdiction continue to apply to the collection or discharge of any personal liability preserved by subdivision (1), as if the domestication had not occurred; (4) The member has whatever rights of contribution from other members are provided by the laws of the foreign jurisdiction with respect to any personal liability preserved by subdivision (1), as if the domestication had not occurred. SL 2016, ch 221, § 21.

SDCL § 47-25A-7 Abandonment of domestication.

47-25A-7. Abandonment of domestication. (a) Unless otherwise provided in a plan of domestication of a domestic nonprofit corporation, after the plan has been adopted and approved, and at any time before the domestication has become effective, it may be abandoned by the board of directors without action by the members. (b) If a domestication is abandoned under paragraph (a) after articles of domestication have been filed with the Office of the Secretary of State but before the domestication has become effective, a statement that the domestication has been abandoned in accordance with this section, signed by an officer or other duly authorized representative, must be delivered to the Office of the Secretary of State for filing prior to the effective date of the domestication. The statement takes effect upon filing and the domestication is abandoned and does not become effective. (c) If the domestication of a foreign nonprofit corporation in this state is abandoned in accordance with the laws of the foreign jurisdiction after articles of domestication are filed with the Office of the Secretary of State, a statement that the domestication has been abandoned, signed by an officer or other duly authorized representative, must be delivered to the Office of the Secretary of State for filing. The statement takes effect upon filing and the domestication is abandoned and does not become effective. SL 2016, ch 221, § 22.

SDCL § 47-25A-8 For-profit conversion--Plan of for-profit conversion.

47-25A-8. For-profit conversion--Plan of for-profit conversion. (a) A domestic nonprofit corporation may become a domestic business corporation pursuant to a plan of for-profit conversion. (b) A domestic nonprofit corporation may become a foreign business corporation if the for-profit conversion is permitted by the laws of the foreign jurisdiction. Regardless of whether the laws of the foreign jurisdiction require the adoption of a plan of for-profit conversion, the foreign for-profit conversion shall be approved by the adoption by the domestic nonprofit corporation of a plan of for-profit conversion. (c) The plan of for-profit conversion must include: (1) The terms and conditions of the conversion; (2) The manner and basis of: (i) Issuing at least one share in the corporation following its conversion; and (ii) Otherwise reclassifying the memberships in the corporation, if any, following its conversion into shares and other securities, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing; (3) Any desired amendments to the articles of incorporation or bylaws of the corporation following its conversion; and (4) If the domestic nonprofit corporation is to be converted to a foreign business corporation, a statement of the jurisdiction in which the corporation will be incorporated after the conversion. (d) The plan of for-profit conversion may also include a provision that the plan may be amended prior to filing articles of for-profit conversion, except that subsequent to approval of the plan by the members the plan may not be amended without the approval of the members to change: (1) The amount or kind of shares and other securities, obligations, rights to acquire shares or other securities, cash, or other property to be received by the members under the plan; (2) The articles of incorporation to be in effect immediately following the conversion; or (3) Any of the other terms or conditions of the plan if the change would adversely affect any of the members in any material respect. (e) If any debt security, note, or similar evidence of indebtedness for money borrowed, whether secured or unsecured, or a contract of any kind, issued, incurred, or executed by a domestic nonprofit corporation before July 1, 2016 contains a provision applying to a merger of the corporation and the document does not refer to a for-profit conversion of the corporation, the provision shall be deemed to apply to a for-profit conversion of the corporation until such time as the provision is amended subsequent to that date. (f) The attorney general shall be provided with notice of the proposed for-profit conversion at least ten days prior to any conversion. SL 2016, ch 221, § 23.

SDCL § 47-25A-9 Conversion of domestic nonprofit corporation to domestic or foreign business corporation.

47-25A-9. Conversion of domestic nonprofit corporation to domestic or foreign business corporation. In the case of a conversion of a domestic nonprofit corporation to a domestic or foreign business corporation: (1) The plan of for-profit conversion must be adopted by the board of directors; (2) After adopting the plan of for-profit conversion, the board of directors must submit the plan to the members for their approval if there are members entitled to vote on the plan. The board of directors must also transmit to the members a recommendation that the members approve the plan, 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 members the basis for that determination; (3) The board of directors may condition its submission of the plan of for-profit conversion to the members on any basis; (4) If the approval of the members is to be given at a meeting, the corporation must notify each member of the meeting of members at which the plan of for-profit conversion 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. The notice shall include or be accompanied by a copy of the proposed articles of incorporation to be in effect immediately after the for-profit conversion; (5) Unless the articles of incorporation, or the board of directors acting pursuant to subdivision (3), require a greater vote or a greater number of votes to be present, the approval of the plan of for-profit conversion by the members requires the approval of each class of members of the corporation voting as a separate class at a meeting at which a quorum of the class exists; and (6) If any provision of the articles of incorporation, bylaws, or an agreement to which any of the directors or members are parties, adopted or entered into before July 1, 2016, applies to a merger of the corporation and the document does not refer to a for-profit conversion of the corporation, the provision shall be deemed to apply to a for-profit conversion of the corporation until such time as the provision is amended subsequent to that date. SL 2016, ch 221, § 24.

SDCL § 47-25A-10 Articles of for-profit conversion.

47-25A-10. Articles of for-profit conversion. (a) Articles of for-profit conversion must be signed on behalf of the converting corporation by any officer or other duly authorized representative. The articles must set forth: (1) If the surviving corporation is a domestic business corporation, the name of the corporation immediately before the filing of the articles of for-profit conversion and if that name does not satisfy the requirements of the business corporation act, or the corporation desires to change its name in connection with the conversion, a name that satisfies the requirements of the business corporation act; (2) If the surviving corporation is a foreign business corporation, its name after the conversion and its jurisdiction of incorporation; and (3) A statement that the plan of for-profit conversion was duly approved by the members in the manner required by this chapter and the articles of incorporation. (b) If the surviving corporation is a domestic business corporation, the articles of for-profit conversion shall either contain all of the provisions that the business corporation act requires to be set forth in the articles of incorporation of a domestic business corporation and any other desired provisions permitted by the business corporation act, or shall have attached articles of incorporation that satisfy the requirements of the business corporation act. In either case, provisions that would not be required to be included in restated articles of incorporation of a domestic business corporation may be omitted, except that the name and address of the initial registered agent of the business corporation must be included. (c) The articles of for-profit conversion must be delivered to the Office of the Secretary of State for filing. SL 2016, ch 221, § 25.

SDCL § 47-25A-11 Effect of for-profit conversion--Liability of member of domestic nonprofit corporation that converts to domestic business corporation.

47-25A-11. Effect of for-profit conversion--Liability of member of domestic nonprofit corporation that converts to domestic business corporation. (a) Except as otherwise prohibited by law, when a conversion of a domestic nonprofit corporation to a domestic or foreign business corporation becomes effective: (1) The title to all real and personal property, both tangible and intangible, of the corporation remains in the corporation without reversion or impairment; (2) The liabilities of the corporation remain the liabilities of the corporation; (3) An action or proceeding pending against the corporation continues against the corporation as if the conversion had not occurred; (4) The articles of incorporation of the domestic or foreign business corporation become effective; (5) The memberships of the corporation are reclassified into shares or other securities, obligations, rights to acquire shares or other securities, or into cash or other property in accordance with the plan of conversion, and the members are entitled only to the rights provided in the plan of for-profit conversion; and (6) The corporation is deemed to: (i) Be a domestic or foreign business corporation for all purposes; and (ii) Be the same corporation without interruption as the nonprofit corporation. (b) The personal liability of a member in a domestic nonprofit corporation that converts to a domestic business corporation is as follows: (1) The conversion does not discharge any personal liability of the member as a member of the nonprofit corporation to the extent any such personal liability arose before the effective time of the articles of for-profit conversion; (2) The member does not have personal liability for any debt, obligation, or liability of the business corporation that arises after the effective time of the articles of for-profit conversion; (3) The laws of this state continue to apply to the collection or discharge of any personal liability preserved by subdivision (1), as if the conversion had not occurred; (4) The member has whatever rights of contribution from other members are provided by the laws of this state with respect to any personal liability preserved by subdivision (1), as if the conversion had not occurred. (c) A member who becomes subject to personal liability for some or all of the debts, obligations, or liabilities of the business corporation has personal liability only for those debts, obligations, or liabilities of the business corporation that arise after the effective time of the articles of for-profit conversion. SL 2016, ch 221, § 26.

SDCL § 47-25A-12 Abandonment of for-profit conversion.

47-25A-12. Abandonment of for-profit conversion. (a) Unless otherwise provided in a plan of for-profit conversion of a domestic nonprofit corporation, after the plan has been adopted and approved, and at any time before the for-profit conversion has become effective, it may be abandoned by the board of directors without action by the members. (b) If a for-profit conversion is abandoned under paragraph (a) after articles of for-profit conversion are filed with the Office of the Secretary of State but before the for-profit conversion has become effective, a statement that the for-profit conversion has been abandoned in accordance with this section, signed by an officer or other duly authorized representative, must be delivered to the Office of the Secretary of State for filing prior to the effective date of the for-profit conversion. The statement takes effect upon filing and the for-profit conversion is abandoned and does not become effective. SL 2016, ch 221, § 27.

SDCL § 47-25A-13 Foreign for-profit domestication and conversion.

47-25A-13. Foreign for-profit domestication and conversion. A foreign business corporation may become a domestic nonprofit corporation if the domestication and conversion is permitted by the laws of the foreign jurisdiction. SL 2016, ch 221, § 28.

SDCL § 47-25A-14 Articles of domestication and conversion.

47-25A-14. Articles of domestication and conversion. (a) After the conversion of a foreign business corporation to a domestic nonprofit corporation is authorized as required by the laws of the foreign jurisdiction, articles of domestication and conversion shall be signed by any officer or other duly authorized representative. The articles shall set forth: (1) The name of the corporation immediately before the filing of the articles of domestication and conversion and, if that name is unavailable for use in this state or the corporation desires to change its name in connection with the domestication and conversion, a name that satisfies the requirements § § 47-22-7 and 47-22-8.1; (2) The jurisdiction of incorporation of the corporation immediately before the filing of the articles of domestication and conversion and the date the corporation was incorporated in that jurisdiction; and (3) A statement that the domestication and conversion of the corporation in this state was duly authorized as required by the laws of the jurisdiction in which the corporation was incorporated immediately before its domestication and conversion in this state. (b) The articles of domestication and conversion shall contain all of the provisions required to be contained in the articles of incorporation of a nonprofit corporation as set forth in § 47-22-6. The name of the domesticated corporation must satisfy the requirements of § § 47-22-7 and 47-2-2-8.1. (c) The articles of domestication and conversion must be delivered to the Office of the Secretary of State for filing. SL 2016, ch 221, § 29.

SDCL § 47-25A-15 Effect of foreign for-profit domestication and conversion--Liability of shareholder.

47-25A-15. Effect of foreign for-profit domestication and conversion--Liability of shareholder. (a) When a domestication and conversion of a foreign business corporation to a domestic nonprofit corporation becomes effective: (1) The title to all real and personal property, both tangible and intangible, of the corporation remains in the corporation without reversion or impairment; (2) The liabilities of the corporation remain the liabilities of the corporation; (3) An action or proceeding pending against the corporation continues against the corporation as if the domestication and conversion had not occurred; (4) The articles of domestication and conversion, or the articles of incorporation attached to the articles of domestication and conversion, constitute the articles of incorporation of the corporation; (5) Memberships, securities, obligations, rights to acquire memberships or securities of the corporation, or cash or other property shall be issued or paid as provided pursuant to the laws of the foreign jurisdiction; and (6) The corporation is deemed to: (i) Be a domestic corporation for all purposes; and (ii) Be the same corporation without interruption as the foreign business corporation. (b) The personal liability of a shareholder of the foreign business corporation who becomes a member of the domestic nonprofit corporation in the domestication and conversion is as follows: (1) The domestication and conversion does not discharge any personal liability under the laws of the foreign jurisdiction to the extent any such personal liability arose before the effective time of the articles of domestication and conversion; (2) The member does not have personal liability under the laws of the foreign jurisdiction for any debt, obligation, or liability of the corporation that arises after the effective time of the articles of domestication and conversion; (3) The provisions of the laws of the foreign jurisdiction continue to apply to the collection or discharge of any personal liability preserved by subdivision (1), as if the domestication and conversion had not occurred; (4) The member has whatever rights of contribution from other members are provided by the laws of the foreign jurisdiction with respect to any personal liability preserved by subdivision (1), as if the domestication and conversion had not occurred. (c) A shareholder of a foreign business corporation who becomes subject to personal liability for some or all of the debts, obligations, or liabilities of the corporation as a result of its domestication and conversion in this state has personal liability only for those debts, obligations, or liabilities of the corporation that arise after the effective time of the articles of domestication and conversion. SL 2016, ch 221, § 30.

SDCL § 47-25A-16 Abandonment of foreign for-profit domestication and conversion.

47-25A-16. Abandonment of foreign for-profit domestication and conversion. If the domestication and conversion of a foreign business corporation to a domestic nonprofit corporation is abandoned in accordance with the laws of the foreign jurisdiction after articles of domestication and conversion have been filed with the Office of the Secretary of State, a statement that the domestication and conversion has been abandoned, signed by an officer or other duly authorized representative, must be delivered to the Office of the Secretary of State for filing. The statement takes effect upon filing and the domestication and conversion is abandoned and does not become effective. SL 2016, ch 221, § 31.

SDCL § 47-25A-17 Effect of conversion.

47-25A-17. Effect of conversion. (a) Except as otherwise prohibited by law, when a conversion under sections §§ 47-25A-13 to 47-25A-22, inclusive, becomes effective: (1) The title to all real and personal property, both tangible and intangible, of the converting entity remains in the surviving entity without reversion or impairment; (2) The liabilities of the converting entity remain the liabilities of the surviving entity; (3) An action or proceeding pending against the converting entity continues against the surviving entity as if the conversion had not occurred; (4) In the case of a surviving entity that is a filing entity, its articles of incorporation or governing documents and rules become effective; (5) The memberships or interests of the converting entity are reclassified into memberships, interests, other securities, obligations, rights to acquire memberships, interests or securities, or into cash or other property in accordance with the plan of conversion; and the members or of the converting entity are entitled only to the rights provided to them under the terms of the conversion and to any appraisal rights they may have under the governing law of the converting entity; and (6) The surviving entity is deemed to: (i) Be incorporated or organized under and subject to the governing law of the converting entity for all purposes; and (ii) Be the same nonprofit corporation or unincorporated entity without interruption as the converting entity. (b) A member who is subject to personal liability for some or all of the debts, obligations, or liabilities of the surviving entity has personal liability only for those debts, obligations, or liabilities of the surviving entity that arise after the effective time of the articles of entity conversion. SL 2016, ch 221, § 32.

SDCL § 47-25A-18 Abandonment of entity conversion.

47-25A-18. Abandonment of entity conversion. (a) Unless otherwise provided in a plan of entity conversion of a domestic nonprofit corporation, after the plan is adopted and at any time before the entity conversion has become effective, it may be abandoned by the board of directors without action by the members. (b) If an entity conversion is abandoned after articles of entity conversion are filed with the Office of the Secretary of State but before the entity conversion becomes effective, a statement that the entity conversion has been abandoned in accordance with this section, signed by an officer or other duly authorized representative, must be delivered to the Office of the Secretary of State for filing prior to the effective date of the entity conversion. Upon filing, the statement takes effect and the entity conversion is abandoned and does not become effective. SL 2016, ch 221, § 33.

SDCL § 47-25A-19 Conversion of domestic business corporation to domestic nonprofit corporation.

47-25A-19. Conversion of domestic business corporation to domestic nonprofit corporation. A domestic business corporation may become a domestic nonprofit corporation pursuant to a plan of nonprofit conversion only if incorporating pursuant to this chapter is not prohibited by any other law of this state. If the law of a domestic business corporation does not provide procedures for the approval of either a nonprofit conversion or a merger, a plan of nonprofit conversion must be adopted and approved, and the conversion effectuated in accordance with this chapter. SL 2016, ch 221, § 34.

SDCL § 47-25A-20 Plan of nonprofit conversion.

47-25A-20. Plan of nonprofit conversion. (a) The plan of nonprofit conversion must be adopted by the shareholders. The plan for nonprofit conversion must include: (1) The terms and conditions of the conversion; (2) The manner and basis of reclassifying the shareholders in the corporation; (3) Any desired amendments to the articles of incorporation or bylaws of the corporation following its conversion; (4) The articles of incorporation to be in effect immediately following the conversion; and (5) Any of the terms or conditions of the plan if the change would adversely affect any of the shareholders in any material respect. The plan for nonprofit conversion may also include a provision that the plan may be amended prior to filing articles of nonprofit conversion. (b) After the plan for nonprofit conversion is authorized, the articles of conversion must be signed on behalf of the converting corporation by any officer or other duly authorized representative. The articles shall set forth: (1) The name of the corporation immediately before the filing of the articles of conversion and, if that name is unavailable for use in this state or the corporation desires to change its name in connection with the conversion, a name that satisfies the requirements of § § 47-22-7 and 47-22-8.1; (2) The jurisdiction of incorporation of the corporation immediately before the filing of the articles of conversion and the date the corporation was incorporated; and (3) A statement that the conversion of the corporation in this state was duly authorized as required by the laws of this state. (c) The articles of conversion shall contain all of the provisions required to be contained in the articles of incorporation of a nonprofit corporation as set forth in § 47-22-6 and any other desired provisions permitted to be included. Provisions that would not be required to be included in restated articles of incorporation may be omitted, except that the name and address of the initial registered agent of the domestic business corporation must be included. (d) The articles of nonprofit conversion must be delivered to the Office of the Secretary of State for filing. SL 2016, ch 221, § 35.

SDCL § 47-25A-21 Effect of conversion of domestic business corporation to domestic nonprofit corporation.

47-25A-21. Effect of conversion of domestic business corporation to domestic nonprofit corporation. (a) When a conversion of a domestic business corporation to a domestic nonprofit corporation becomes effective: (1) The title to all real and personal property, both tangible and intangible, of the corporation remains in the corporation without reversion or impairment; (2) The liabilities of the corporation remain the liabilities of the corporation; (3) An action or proceeding pending against the corporation continues against the corporation as if the conversion had not occurred; (4) The articles of conversion, or the articles of incorporation attached to the articles of conversion, constitute the articles of incorporation of the corporation; (5) Memberships, securities, obligations, rights to acquire memberships or securities of the corporation, or cash or other property shall be issued or paid as provided pursuant to the laws of this state; and (6) The corporation is deemed to: (i) Be a domestic nonprofit corporation for all purposes; and (ii) Be the same corporation without interruption. (b) The personal liability of a shareholder of the domestic business corporation who becomes a member of the domestic nonprofit corporation in the conversion is as follows: (1) The conversion does not discharge any personal liability under the laws of this state to the extent any such personal liability arose before the effective time of the articles of conversion; (2) The member does not have personal liability under the laws of this state for any debt, obligation, or liability of the corporation that arises after the effective time of the articles of conversion; (3) The provisions of the laws of this state continue to apply to the collection or discharge of any personal liability preserved by subdivision (1), as if the conversion had not occurred; (4) The member has whatever rights of contribution from other members are provided by the laws of this state with respect to any personal liability preserved by subdivision (1), as if the conversion had not occurred. (c) A shareholder of a domestic business corporation who becomes subject to personal liability for some or all of the debts, obligations, or liabilities of the corporation as a result of its conversion in this state has personal liability only for those debts, obligations, or liabilities of the corporation that arise after the effective time of the articles of conversion. SL 2016, ch 221, § 36.

SDCL § 47-25A-22 Abandonment of conversion of domestic business corporation to domestic nonprofit corporation.

47-25A-22. Abandonment of conversion of domestic business corporation to domestic nonprofit corporation. If the conversion of a domestic business corporation to a domestic nonprofit corporation is abandoned in accordance with the laws of this state after articles of conversion have been filed with the Office of the Secretary of State, a statement that the conversion has been abandoned, signed by an officer or other duly authorized representative, must be delivered to the Office of the Secretary of State for filing. The statement takes effect upon filing and the conversion is abandoned and does not become effective. SL 2016, ch 221, § 37.

Source: South Dakota Legislature (sdlegislature.gov)URL: https://sdlegislature.gov/Statutes/47-25AFetched: 10/20/2026