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SENATE BILL NO. 296
INTRODUCED BY L. NELSON, D. HEDGES, R. JABS, G. JERGESON, S. KITZENBERG, B. REHBEIN, J. TESTER
AN ACT GENERALLY REVISING THE COOPERATIVE MARKETING ACT; PROVIDING THAT AN OFFER OR SALE OF SECURITIES BY AN ASSOCIATION ORGANIZED UNDER THE COOPERATIVE MARKETING ACT IS AN EXEMPT TRANSACTION UNDER MONTANA SECURITIES LAWS; AND AMENDING SECTIONS 30-10-105, 35-17-103, 35-17-202, 35-17-203, 35-17-301, 35-17-302, 35-17-304, 35-17-312, 35-17-314, AND 35-17-315, MCA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 30-10-105, MCA, is amended to read:
"30-10-105. Exempt transactions -- rulemaking. Except as expressly provided in this section, 30-10-201 through 30-10-207 do not apply to the following transactions:
(1) a nonissuer isolated transaction, whether effected through a broker-dealer or not. A transaction is presumed to be isolated if it is one of not more than three transactions during the prior 12-month period.
(2) (a) a nonissuer distribution of an outstanding security by a broker-dealer registered pursuant to 30-10-201 if:
(i) quotations for the securities to be offered or sold (or the securities issuable upon exercise of any warrant or right to
purchase or subscribe to the securities) are reported by the automated quotations system operated by the national
association of securities dealers, inc.
, (NASDAQ), or by any other quotation system approved by the commissioner by rule;
(ii) the security has a fixed maturity or a fixed interest or dividend provision and there has been no default during the current fiscal year or within the 3 preceding fiscal years or if the issuer and any predecessors have been in existence for less than 3 years and there has been no default in the payment of principal, interest, or dividends on the security.
(b) The commissioner may by order deny or revoke the exemption specified in subsection (2)(a) with respect to a specific security. Upon the entry of an order, the commissioner shall promptly notify all registered broker-dealers that it has been entered and give the reasons for the order and shall notify them that within 15 days of the receipt of a written request, the matter will be set for hearing. If a hearing is not requested and is not ordered by the commissioner, the order remains in effect until it is modified or vacated by the commissioner. If a hearing is requested or ordered, the commissioner, after notice of and opportunity for hearing to all interested persons, may modify or vacate the order or extend it until final determination. An order under this subsection may not operate retroactively. A person may not be considered to have violated parts 1 through 3 of this chapter by reason of any offer or sale effected after the entry of an order under this subsection if the person sustains the burden of proof that the person did not know and in the exercise of reasonable care could not have known of the order.
(3) a nonissuer transaction effected by or through a registered broker-dealer pursuant to an unsolicited order or offer to buy, but the commissioner may require that the customer acknowledge upon a specified form that the sale was unsolicited and that a signed copy of each form be preserved by the broker-dealer for a specified period;
(4) a transaction between the issuer or other person on whose behalf the offering is made and an underwriter or between underwriters;
(5) a transaction by an executor, administrator, sheriff, marshal, receiver, trustee in bankruptcy, guardian, or conservator in the performance of official duties;
(6) a transaction executed by a bona fide pledgee without any purpose of evading parts 1 through 3 of this chapter;
(7) an offer or sale to a bank, savings institution, trust company, insurance company, investment company as defined in the Investment Company Act of 1940, pension or profit-sharing trust, or other financial institution or institutional buyer or to a broker-dealer, whether the purchaser is acting for itself or in a fiduciary capacity;
(8) (a) a transaction pursuant to an offer made in this state directed by the offeror to not more than 10 persons (other
than those designated in subsection (7)) during any period of 12 consecutive months
(i) the seller reasonably believes that all the buyers are purchasing for investment; and
(ii) a commission or other remuneration is not paid or given directly or indirectly for soliciting a prospective buyer
provided, however, that. However, a commission may be paid to a registered broker-dealer if the securities involved are
registered with the United States securities and exchange commission under the federal Securities Act of 1933, as amended ;.
(b) any transaction pursuant to an offer made in this state directed by the offeror to not more than 25 persons, other than those designated in subsection (7), during any period of 12 consecutive months if:
(i) the seller reasonably believes that all the buyers are purchasing for investment;
(ii) a commission or other remuneration is not paid or given directly or indirectly for soliciting any prospective buyer;
provided, however, that a commission may be paid to a registered broker-dealer if the securities involved are registered with
the United States securities and exchange commission under the federal Securities Act of 1933, as amended; and
(iii) the offeror applies for and obtains the written approval of the commissioner prior to making any offers in this state and pays a filing fee that must accompany the application for approval. The commissioner may deny an application.
(c) For the purpose of the exemptions provided for in this subsection (8), an offer to sell is made in this state, whether or
not the offeror or any of the offerees
is are then present in this state, if the offer either originates from this state or is directed
by the offeror to this state and received at the place to which it is directed (or at any post office in this state in the case of a
(9) an offer or sale of a preorganization certificate or subscription if:
(a) a commission or other remuneration is not paid or given directly or indirectly for soliciting a prospective subscriber;
(b) the number of subscribers does not exceed 25; and
(c) a payment is not made by a subscriber;
(10) a transaction pursuant to an offer to existing security holders of the issuer, including persons who at the time of the transaction are holders of convertible securities, nontransferable warrants, or transferable warrants exercisable within not more than 90 days of their issuance, if:
(a) a commission or other remuneration (other than a standby commission) is not paid or given directly or indirectly for soliciting any security holder in this state; or
(b) the issuer first files a notice specifying the terms of the offer and the commissioner does not by order disallow either subsection (10)(a) or the notice specifying the terms of the offer;
(11) an offer, but not a sale, of a security for which registration statements have been filed under both parts 1 through 3 of this chapter and the Securities Act of 1933 if a stop, refusal, denial, suspension, or revocation order is not in effect and a public proceeding or examination looking toward an order is not pending under either law;
(12) an offer, but not a sale, of a security for which a registration statement has been filed under parts 1 through 3 of this chapter and the commissioner does not disallow the offer in writing within 10 days of the filing;
(13) the issuance of a stock dividend, whether the corporation distributing the dividend is the issuer of the stock or not, if nothing of value is given by stockholders for the distribution other than the surrender of a right to a cash dividend when the stockholder can elect to take a dividend in cash or stock;
(14) a transaction incident to a right of conversion or a statutory or judicially approved reclassification, recapitalization, reorganization, quasi-reorganization, stock split, reverse stock split, merger, consolidation, or sale of assets;
(15) a transaction in compliance with rules that the commissioner may adopt to serve the purposes of 30-10-102. The
commissioner may require that 30-10-201 through 30-10-207 apply to any
or all transactional exemptions adopted by rule.
(16) a transaction in the securities of a certified Montana capital company or a certified Montana small business investment capital company as defined in 90-8-104, provided that the company first files all disclosure documents, along with a consent to service of process, with the commissioner. The commissioner may not charge a fee for the filing.
(17) the sale of a commodity investment contract traded on a commodities exchange recognized by the commissioner at the time of sale;
(18) a transaction within the exclusive jurisdiction of the commodity futures trading commission as granted under the Commodity Exchange Act;
(19) a transaction that:
(a) involves the purchase of one or more precious metals;
(b) requires, and under which the purchaser receives within 7 calendar days after payment in good funds of any portion of the purchase price, physical delivery of the quantity of the precious metals purchased. For the purposes of this subsection, physical delivery is considered to have occurred if, within the 7-day period, the quantity of precious metals, whether in specifically segregated or fungible bulk, purchased by the payment is delivered into the possession of a depository, other than the seller, that:
(i) (A) is a financial institution, meaning a bank, savings institution, or trust company organized under or supervised pursuant to the laws of the United States or of this state;
(B) is a depository the warehouse receipts of which are recognized for delivery purposes for any commodity on a contract market designated by the commodity futures trading commission; or
(C) is a storage facility licensed by the United States or any agency of the United States; and
(ii) issues, and the purchaser receives, a certificate, document of title, confirmation, or other instrument evidencing that the quantity of precious metals has been delivered to the depository and is being and will continue to be held on the purchaser's behalf, free and clear of all liens and encumbrances other than:
(A) liens of the purchaser;
(B) tax liens;
(C) liens agreed to by the purchaser; or
(D) liens of the depository for fees and expenses that previously have been disclosed to the purchaser.
(c) requires the quantity of precious metals purchased and delivered into the possession of a depository, as provided in subsection (19)(b), to be physically located within Montana at all times after the 7-day delivery period provided in subsection (19)(b), and the precious metals are in fact physically located within Montana at all times after that delivery period;
(20) a transaction involving a commodity investment contract solely between persons engaged in producing, processing, using commercially, or handling as merchants each commodity subject to the contract or any byproduct of the commodity;
(21) an offer or sale of a security to an employee of the issuer, pursuant to an employee stock ownership plan qualified under section 401 of the Internal Revenue Code; or
(22) (a) an offer or sale of securities by a cooperative association organized under the provisions of Title 35, chapter 15 or 17, or under the laws of another state that are substantially the same as the provisions of Title 35, chapter 15 or 17, if the offer and sale are only to members of the cooperative association or the purchase of the securities is necessary or incidental to establishing membership in the cooperative association;
(b) a cooperative organized under the laws of another state may not take advantage of the exemption created by this subsection (22) unless, not less than 10 days before the issuance or delivery of the securities, the cooperative has furnished the commissioner with a general written description of the transaction and any other information the commissioner may require by rule or otherwise. The commissioner shall promulgate rules establishing a list of states whose laws are considered substantially the same as Title 35, chapter 15 or 17, for the purposes of this subsection (22)."
Section 2. Section 35-17-103, MCA, is amended to read:
"35-17-103. Definitions and associations as nonprofit entities. (1) The term "agricultural products"
includes horticultural, viticultural, forestry, dairy, livestock, poultry, bee, and any farm products.
(2) The term "association" means any corporation organized under this chapter.
(3) The term "member"
shall include actual members of associations without capital stock and holders of common stock
in associations organized with capital stock means a person who has been qualified and accepted for membership in an
(4) The term "person"
shall include includes individuals, firms, partnerships, corporations, and associations.
(5) Associations organized
hereunder shall be deemed under this chapter must be considered nonprofit inasmuch as
because they are not organized to make profits for themselves , as such, or for their members , as such, but only for their
members as producers."
Section 3. Section 35-17-202, MCA, is amended to read:
"35-17-202. Articles of incorporation -- contents -- filing -- articles or copies as prima facie evidence. (1) Each
association formed under this chapter
must shall prepare and file articles of incorporation setting forth:
(a) the name of the association;
(b) the purposes for which it is formed;
(c) the place where its principal business will be transacted;
(d) the term for which it is to exist, which may be perpetual;
(e) the number of its directors or trustees
, which shall not be less than 5 or more than 13, and the names and residences
of those who are appointed for the first 3 months and until their successors are elected and qualified;
(f) if organized without capital stock, whether the property rights and interest of each member
shall be are equal or
unequal, and if unequal, the articles shall must set forth the general rule or rules applicable to all members by which the
property rights and interests, respectively, of each member may and shall must be determined and fixed. The association shall
have has the power to admit new members who shall must be entitled to share in the property of the association with the old
members, in accordance with such the general rule or rules .;
(g) the designation of classes of members, if more than one;
(h) the number and par value of shares of each authorized class of stock and, if more than one class is authorized:
(i) the designation, preferences, limitations, and relative rights of each class;
(ii) which classes of stock are membership stock;
(iii) as to each class of stock, the rate of dividend, if any, or a statement that the rate of dividend may be fixed by the board; and
(iv) any reservation of a right to acquire or recall any stock.
(2) In addition to provisions required in subsection (1), the articles of incorporation may also contain provisions not inconsistent with law regarding liability as set forth in 35-1-216.
(3) The articles must be subscribed by the incorporators and
shall must be filed in accordance with the provisions of the
general corporation law of this state, and when so filed, the articles of incorporation or certified copies thereof shall must be
received in all the courts of this state and other places accepted as prima facie evidence of the facts contained therein in the
articles and of the due incorporation of such the association."
Section 4. Section 35-17-203, MCA, is amended to read:
"35-17-203. Amendments to articles of incorporation. At any time after filing, the articles of incorporation may be
amended. Any amendment of the articles of incorporation
shall must be approved by two-thirds a majority of the directors
and then adopted by vote of not less than two-thirds a majority of those stockholders members voting thereon at any regular
meeting of the stockholders association or at a special meeting of the stockholders called for that the purpose of amending
the articles, unless the articles require approval by a larger number of directors or members. A statement setting forth the
amendment shall must be executed and attested to on behalf of the association by its president or vice-president and its
corporate seal affixed thereto and attested by its secretary appropriate officers. The statement shall must be filed in the office
of the secretary of state who shall thereupon issue a certificate of amendment of the articles of incorporation. A certified
copy of such the certificate of amendment shall must be filed in the office of the county clerk for the county in which the
principal office of the association is located."
Section 5. Section 35-17-301, MCA, is amended to read:
"35-17-301. Who may be members. (1) Under the terms and conditions prescribed in its bylaws, an association may
admit as members or issue
common stock only to persons engaged in the production of the agricultural products to be
handled by or through the association, including the lessees and tenants of land used for the production of such the products
and any lessors and landlords who receive as rent part of the crop raised on the leased premises.
(2) If a member of a nonstock association
be is other than a natural person, such that member may be represented by any
individual, associate, officer, or member thereof duly authorized in writing.
(3) One association organized
hereunder under this chapter may become a member or stockholder of any other
association or associations organized hereunder under this chapter."
Section 6. Section 35-17-302, MCA, is amended to read:
"35-17-302. Stock -- issuance -- limitations on ownership and transfer -- repurchase by association. (1) When a
member of an association established without capital stock has paid
his the member's membership fee in full, he shall the
member must receive a certificate of membership.
(2) (a) An association organized with capital stock may issue the amount of stock stated in its articles. The stock may be divided into two or more classes with the designations, preferences, limitations, and relative rights as stated in the articles, except that stock without par value may not be issued.
(b) The articles may require that members own one or more shares of membership stock. The membership stock may be issued or transferred only to a person eligible to become a member and only when that person satisfies the other requisites for membership. Unless restricted by the articles, stock other than membership stock may be issued or transferred to any person.
(2)(3) No An association shall may not issue stock to a member until it has been fully paid for. The promissory notes of
the members may be accepted by the association as full or partial payment. The association shall hold the stock as security
for the payment of the note, but such retention as security shall does not affect the members' right to vote. (3)(4) No stockholder of a cooperative association shall own more than one-twentieth of the issued common stock of
the association, and an An association, in its bylaws, may limit the amount of common stock which that one member may
own to any amount less than one-twentieth of the issued common stock. (4) The bylaws shall prohibit the transfer of the common stock of the association to persons not engaged in the
production of the agricultural products handled by the association, and such restrictions must be printed upon every
certificate of stock subject thereto. (5) The association may at any time, except when the debt of the association exceeds 50% of the assets thereof, buy in
or purchase its common stock at book value thereof as conclusively determined by the board of directors and pay for it in
cash within 1 year thereafter.
(5) (a) Unless the articles provide otherwise, an association may acquire, recall, exchange, redeem, and reissue its own stock. Provisions in the articles and on the stock certificate may reserve to the association a prior right to acquire any stock offered for sale or the right to recall the stock of any stockholder, or both rights.
(b) The consideration paid by the association for recalled stock must be its par value and accrued unpaid dividends. However, if the book value of the stock is less than the par value, the consideration must be the book value.
(c) An association may set off obligations of a stockholder to the association.
(d) If the remaining assets of an association would be less than the aggregate amount payable to creditors and persons holding stock with preferential rights upon liquidation, the association may not acquire, recall, exchange, or redeem any stock for consideration other than stock or certificates of equity interest of equal or subordinate rank.
(6) (a) If stock is acquired, recalled, exchanged, or redeemed by an association, the stock is restored to the status of authorized but unissued stock.
(b) Stockholders do not have a preemptive right to purchase additional stock."
Section 7. Section 35-17-304, MCA, is amended to read:
Withdrawal or expulsion Expulsion of member. In case of the withdrawal or expulsion of a member, the
board of directors shall equitably and conclusively appraise his the member's property interests in the association and shall fix
the amount thereof of the interest in money, which shall must be paid to him the member within 1 year after such expulsion
Section 8. Section 35-17-312, MCA, is amended to read:
"35-17-312. Officers -- election -- bank as treasurer. (1) The directors shall elect from their number a president and
one or more
vice-presidents vice presidents. They shall also elect a secretary and treasurer who need not be directors, and
they may combine the two latter offices and designate the combined office as secretary-treasurer. The treasurer may be a
bank or any depositary and as such shall, in which case it may not be considered as an officer but as instead a function of the
board of directors . In such case, and the secretary shall perform the usual accounting duties of the treasurer, excepting
except that the funds shall must be deposited only as authorized by the board of directors.
(2) (a) If the bylaws provide, the directors may also elect from their number a presiding officer and one or more vice presiding officers, in which case the president and vice presidents need not be directors or stockholders.
(b) Any other officer may be chosen as provided in the bylaws."
Section 9. Section 35-17-314, MCA, is amended to read:
"35-17-314. Referendum to membership of matters passed by board. Upon demand of
40% a majority of the entire
board of directors, any matter that has been approved or passed by the board must be referred to the entire membership or
the stockholders for a decision at the next special or regular meeting. However, a special meeting may be called for the
Section 10. Section 35-17-315, MCA, is amended to read:
"35-17-315. Creation of capital reserve -- distribution of net earnings. At least once annually, the directors shall determine and distribute net proceeds as follows:
(1) (a) An association organized under this chapter may set aside
such part of its net earnings as its board of directors
considers advisable for the purpose of creating or maintaining a capital reserve. In addition to such the capital reserve, the
directors may set aside a sum not to exceed 5% of the annual net earnings of the association, which shall must be used for
the purposes of promoting and teaching cooperative organization and principles. The directors may establish and accumulate
reserves for buildings, machinery and equipment, depreciation, losses, and other proper purposes.
(b) A share of the net proceeds may be set aside for or paid to employees. This amount for all purposes, except the computation of net proceeds, must be considered an expense of the association.
(c) In an association with capital stock, a dividend may be paid on the capital stock as authorized in the articles. A dividend may not be paid if the association's capital is impaired or the payment of the dividend would result in an impairment of capital.
(2) Net earnings in excess of any
such deductions in subsection (1) shall must be distributed annually to patrons on the
basis of patronage. An association subject to the provisions of this chapter may distribute net earnings in the following or a
combination of the following: cash, credits, stock, revolving fund certificates, other certificates, or securities of the
association or of other associations , or in any combination thereof."
- END -
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