Opinion No. 1988-249

W.J. “Bill” McCuen

Attorney General of Arkansas — Opinion
December 2, 1988

STEVE CLARK, Attorney General

The Honorable W.J. “Bill” McCuen Secretary of State State Capitol Little Rock, AR 72201-1094

Dear Mr. McCuen:

This is in response to your request for an opinion on the following questions:

1. May domestic or foreign corporations formed prior to December 31, 1987 under the Professional Corporation Act, the Medical Corporation Act, or the Dental Corporation Act elect to be governed by the Arkansas Business Corporation Act of 1987?
2. Are Cooperative Associations or Cooperative Banks similarly affected?

Opinion Number 88-066, a copy of which is attached hereto, was issued in response to a request that included the above questions. These questions were not answered due to an oversight. This opinion therefore supplements the former, Opinion Number 88-066.

As noted in Opinion Number 88-066, specific reference is made in the Professional Corporation Act, the Medical Corporation Act, and the Dental Corporation Act to the Arkansas Business Corporation Act as contained in Act 576 of 1965. Thus, it was concluded therein that corporations formed under those Acts are governed by the 1987 Business Corporation Act.

Arkansas Code Annotated 4-27-1701 (Supp. 1987) does state, however, that corporations formed prior to the effective date of the 1987 Business Corporation Act (December 31, 1987) “. . . under any general statute of this state providing for incorporation of corporations for profit” may elect to be governed by the 1987 Act. While it is my opinion, in response to your first question, that this election is available to domestic Professional, Medical, and Dental Corporations formed under A.C.A. 4-29-201, et seq., 4-29-301, et seq., and 4-29-401, et seq., a question may arise with respect to such foreign corporations. The election provided for under Section 4-27-1701 (Supp. 1987) appears to apply to existing domestic corporations. And as previously noted, we have concluded that corporations formed under the foregoing provisions are generally governed by the pre-existing Business Corporation Act (Act 576 of 1965). It therefore follows that such foreign Professional, Medical, or Dental Corporations do not fall within the category of corporations which may elect to be governed by the 1987 Act.

Your second question involves Cooperative Associations (A.C.A. 4-30-101, et seq.) and Cooperative Banks (A.C.A. 4-30-201, et seq.). A review of A.C.A. 4-27-1701 (Supp. 1987) supports the conclusion that such entities formed prior to December 31, 1987 may elect to be governed by the Business Corporation Act of 1987. Such entities formed on or after December 31, 1987 would also be subject to the 1987 Act, though it must be recognized that the formation of cooperative banks after March 22, 1937 is precluded under A.C.A. 4-30-204.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Steve Clark Attorney General